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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities and Exchange Act of 1934
Date of Report (Date of earliest event reported): February 4, 1999
FIRST UNION COMMERCIAL MORTGAGE SECURITIES, INC.
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(Exact name of registrant as specified in its governing instruments)
DELAWARE 333-62671 56-1643598
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(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
ONE FIRST UNION CENTER
CHARLOTTE, NORTH CAROLINA 28228-0600
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(Address of Principal Executive Offices)
Registrant's telephone number, including area code: (704) 374-6828
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ITEM 1, Items 3 through 6, and Items 8 and 9 are not included because they are
not applicable.
ITEM 2. Acquisition or Disposition of Assets.
On December 30, 1998, a single series of mortgage pass-through
certificates, entitled First Union Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, FUNB Series 1999-C1 (the "Certificates"),
was issued pursuant to a pooling and servicing agreement (the "Pooling
Agreement") attached hereto as Exhibit 4.1 and dated as of December 1, 1998,
among First Union Commercial Mortgage Securities, Inc. as depositor (the
"Registrant"), First Union National Bank as master servicer, Lennar Partners,
Inc. as special servicer and Norwest Bank Minnesota, National Association as
trustee. The Certificates consist of fifteen classes (each, a "Class") of
Certificates, seven of which Classes are designated as the "Class A-1
Certificates", the "Class A-2 Certificates", the "Class B Certificates", the
"Class C Certificates", the "Class D Certificates", the "Class E Certificates"
and the "Class IO-1 Certificates" (collectively, the "Offered Certificates");
and eight of which Classes are designated as the "Class F Certificates", the
"Class G Certificates", the "Class H Certificates", the "Class IO-2
Certificates," the "Class R-I Certificates", the "Class R-II Certificates", the
"Class R-III Certificates" and the "Class R-IV Certificates" (collectively, the
"Private Certificates"). The Certificates evidence in the aggregate the entire
beneficial ownership interest in a trust fund (the "Trust Fund") consisting
primarily of 238 multifamily and commercial mortgage loans (the "Mortgage
Loans") having an aggregate principal balance as of February 1, 1999 (the
"Cut-off Date") of $1,163,518,250. Each Mortgage Loan is secured by a mortgage
lien on a fee or leasehold interest in an income producing property. All of the
Mortgage Loans were acquired by the Registrant from First Union National Bank
(the "Seller") pursuant to a Mortgage Loan Purchase Agreement dated as of
December 1, 1998 (the "Purchase Agreement"), between the Registrant and the
Seller. The purchase price for the Mortgage Loans paid by the Registrant to the
Seller was $1,165,454,646. The Offered Certificates were sold by the Registrant
to Morgan Stanley Dean Witter ("Morgan Stanley") and First Union Capital
Markets, a division of Wheat First Securities, Inc. ("First Union") pursuant to
an Underwriting Agreement, dated January 21, 1999 (the "Underwriting
Agreement"), among the Registrant, Morgan Stanley, First Union and First Union
National Bank, and the Private Certificates were sold by the Registrant to
Morgan Stanley pursuant to a Certificate Purchase Agreement, dated December 29,
1998, among the Registrant, Morgan Stanley and First Union National Bank. The
Registrant is a wholly-owned limited purpose finance subsidiary of First Union.
On December 30, 1998, the Registrant transferred the Mortgage Loans to the Trust
Fund pursuant to the Pooling Agreement.
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The Offered Certificates and the Mortgage Loans are more particularly
described in the Prospectus, dated January 8, 1999, and the Prospectus
Supplement, dated January 21, 1999, as previously filed with the Securities and
Exchange Commission pursuant to Rule 424(b)(5). Capitalized terms used but not
otherwise defined herein have the meanings set forth in the Prospectus
Supplement.
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ITEM 7. Financial Statements and Exhibits
(a) Financial Statements - Not Applicable
(b) Pro Forma Financial Information - Not Applicable
(c) Exhibits
1.1 Underwriting Agreement, dated January 21, 1999, among First
Union Commercial Mortgage Securities, Inc., Morgan Stanley Dean
Witter, First Union Capital Markets and First Union National
Bank.
4.1 Pooling and Servicing Agreement, dated as of December 1, 1998,
among First Union Commercial Mortgage Securities, Inc. as
depositor, First Union National Bank as master servicer, Lennar
Partners, Inc. as special servicer, and Norwest Bank Minnesota,
National Association as trustee.
99.1 Mortgage Loan Purchase Agreement, dated as of December 1, 1998,
between First Union Commercial Mortgage Securities, Inc. and
First Union National Bank.
99.2 Tax Opinion of Willkie Farr & Gallagher dated February 4, 1999.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
FIRST UNION COMMERCIAL
MORTGAGE SECURITIES, INC.
By: /s/ BRIAN E. SIMPSON
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Name: Brian E. Simpson
Title: President
Dated: February 11, 1999
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EXHIBIT INDEX
The following exhibits are being filed herewith:
Exhibit No. Description
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1.1 Underwriting Agreement, dated January 21, 1999, among First
Union Commercial Mortgage Securities, Inc., Morgan Stanley Dean,
First Union Capital Markets and First Union National Bank.
4.1 Pooling and Servicing Agreement, dated as of December 1, 1998,
among First Union Commercial Mortgage Securities, Inc. as
depositor, First Union National Bank as master servicer, Lennar
Partners, Inc. as special servicer, and Norwest Bank Minnesota,
National Association as trustee.
99.1 Mortgage Loan Purchase Agreement, dated as of December 1, 1998,
between First Union Commercial Mortgage Securities, Inc. and
First Union National Bank.
99.2 Tax Opinion of Willkie Farr & Gallagher dated February 4, 1999.
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EXECUTION
FIRST UNION COMMERCIAL MORTGAGE SECURITIES, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
FUNB SERIES 1999-C1
UNDERWRITING AGREEMENT
Charlotte, North Carolina
January 21, 1999
First Union Capital Markets,
a division of Wheat First Securities, Inc.
One First Union Center
Charlotte, North Carolina 28288-0166
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
First Union Commercial Mortgage Securities, Inc., a North Carolina
corporation (the "Company"), has issued its Commercial Mortgage Pass-Through
Certificates, FUNB Series 1999-C1 (the "Certificates"), in 15 classes (each, a
"Class") as designated in the Prospectus Supplement (as defined below). The
Company further proposes to sell to you (each an "Underwriter" and together, the
"Underwriters") on February 4, 1999 (the "Settlement Date") the Certificates set
forth in Schedule I hereto (the "Underwritten Certificates") in the respective
original principal and notional amounts set forth in Schedule I. The
Certificates represent in the aggregate the entire beneficial ownership interest
in a trust fund (the "Trust Fund") consisting of a segregated pool (the
"Mortgage Pool") of mortgage loans (the "Mortgage Loans") secured by first liens
on the borrowers' fee or leasehold interests in multifamily and commercial
properties (the "Mortgaged Properties"). The Trust Fund was created and the
Certificates were issued on December 30, 1998 (the "Closing Date"), and the
Mortgage Pool is being serviced and administered pursuant to a pooling and
servicing agreement (the "Pooling and Servicing Agreement"), dated as of
December 1, 1998, among the Company, First Union National Bank, as master
servicer ("FUNB" or the "Master Servicer"), Lennar Partners, Inc., as special
servicer (the "Special Servicer") and Norwest Bank Minnesota, National
Association, as trustee (the "Trustee"). The Mortgage Loans were owned by First
Union National Bank (in such capacity, the "Mortgage Loan Seller") and were
acquired by the Company on the Closing Date pursuant to a mortgage loan purchase
agreement (the "Mortgage Loan Purchase Agreement"), dated as of
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December 1, 1998, between the Mortgage Loan Seller and the Company. The
Underwritten Certificates were acquired by FUNB on the Closing Date and will be
acquired from FUNB by the Company on or prior to the Settlement Date. The
Underwritten Certificates and the Mortgage Pool are described more fully in
Schedule I hereto and in a registration statement furnished to you by the
Company.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
1. Representations and Warranties. (I) The Company represents and warrants
to, and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-62671) on
Form S-3 for the registration of Commercial Mortgage Pass-Through
Certificates, issuable in series, including the Underwritten Certificates,
under the Securities Act of 1933, as amended (the "1933 Act"), which
registration statement has become effective and a copy of which, as
amended to the date hereof, has heretofore been delivered to you. The
Company meets the requirements for use of Form S-3 under the 1933 Act, and
such registration statement, as amended at the date hereof, meets the
requirements set forth in Rule 415(a)(1)(x) under the 1933 Act and
complies in all other material respects with the 1933 Act and the rules
and regulations thereunder. The Company proposes to file with the
Commission, with your consent, pursuant to Rule 424 under the 1933 Act, a
supplement dated January 21, 1999 (the "Prospectus Supplement") to the
prospectus dated January 8, 1999 (the "Basic Prospectus"), relating to the
Underwritten Certificates and the method of distribution thereof, and has
previously advised you of all further information (financial and other)
with respect to the Underwritten Certificates and the Mortgage Pool to be
set forth therein. Such registration statement (No. 333-62671), including
all exhibits thereto, is referred to herein as the "Registration
Statement"; and the Basic Prospectus and the Prospectus Supplement,
together with any amendment thereof or supplement thereto authorized by
the Company prior to the Settlement Date for use in connection with the
offering of the Underwritten Certificates, are hereinafter called the
"Prospectus". Any preliminary form of the Prospectus Supplement that has
heretofore been filed pursuant to Rule 424 or, prior to the effective date
of the Registration Statement, pursuant to Rule 402(a) or 424(a), is
hereinafter called a "Preliminary Prospectus Supplement". If so stated in
the Prospectus Supplement, the Company will file with the Commission
within fifteen days of the issuance of the Underwritten Certificates a
report on Form 8-K ("8-K") setting forth specific information concerning
the Mortgage Pool and the Underwritten Certificates to the extent that
such information is not set forth in the Prospectus Supplement.
(b) As of the date hereof, as of the date on which the Prospectus
Supplement is first filed pursuant to Rule 424 under the 1933 Act, as of
the date on which, prior to the Settlement Date, any amendment to the
Registration Statement becomes effective, as of the date on which any
supplement to the Prospectus Supplement is filed with the Commission, and
as of the Settlement Date, (i) the Registration Statement, as amended
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as of any such time, and the Prospectus, as amended or supplemented as of
any such time, complies and will comply in all material respects with the
applicable requirements of the 1933 Act and the rules and regulations
thereunder, (ii) the Registration Statement, as amended as of any such
time, does not contain and will not contain any untrue statement of a
material fact and does not omit and will not omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, and (iii) the Prospectus, as amended or
supplemented as of any such time, does not contain and will not contain
any untrue statement of a material fact and does not omit and will not
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations
or warranties as to statements contained in or omitted from the
Registration Statement or the Prospectus or any amendment or supplement
thereto made in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through you
specifically for use in the Registration Statement and the Prospectus
(such information being identified in Section 8(b)).
(c) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of North
Carolina with corporate power and authority to own, lease or operate its
properties and to conduct its business as now conducted by it and to enter
into and perform its obligations under this Agreement and the Pooling and
Servicing Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business.
(d) As of the date hereof, as of the date on which the Prospectus
Supplement is first filed pursuant to Rule 424 under the 1933 Act, as of
the date on which, prior to the Settlement Date, any amendment to the
Registration Statement becomes effective, as of the date on which any
supplement to the Prospectus Supplement is filed with the Commission, and
as of the Settlement Date, there has not and will not have been (i) any
request by the Commission for any further amendment to the Registration
Statement or the Prospectus or for any additional information, (ii) any
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threat of any
proceeding for that purpose or (iii) any notification with respect to the
suspension of the qualification of the Underwritten Certificates for sale
in any jurisdiction or any initiation or threat of any proceeding for such
purpose.
(e) Each of this Agreement, the Pooling and Servicing Agreement and
the Mortgage Loan Purchase Agreement has been duly authorized, executed
and delivered by the Company and each of this Agreement, the Pooling and
Servicing Agreement and the Mortgage Loan Purchase Agreement constitutes
legal, valid and binding agreements of the Company, enforceable against
the Company in accordance with their respective terms, except as
enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws affecting
the enforcement of the rights of
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creditors generally, (ii) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law, and (iii)
public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement or the Pooling and Servicing Agreement that
purport to provide indemnification from securities law liabilities.
(f) As of the Settlement Date, the Underwritten Certificates, the
Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreement
will conform in all material respects to the respective descriptions
thereof contained in the Prospectus. As of the Settlement Date, the
Underwritten Certificates will be duly and validly authorized and, when
delivered in accordance with the Pooling and Servicing Agreement to you
against payment therefor as provided herein, will be duly and validly
issued and outstanding and entitled to the benefits of the Pooling and
Servicing Agreement.
(g) As of the Settlement Date, to the actual knowledge of the
Company without any independent investigation, there has been no material
adverse change with respect to the Mortgage Pool since the Closing Date.
(h) The Company is not in violation of its certificate of
incorporation or by-laws or in default under any agreement, indenture or
instrument the effect of which violation or default would be material to
the Company or which violation or default would have a material adverse
affect on the performance of its obligations under this Agreement, the
Pooling and Servicing Agreement or the Mortgage Loan Purchase Agreement.
Neither the issuance and sale of the Underwritten Certificates, nor the
execution and delivery by the Company of this Agreement or the Pooling and
Servicing Agreement nor the consummation by the Company of any of the
transactions herein or therein contemplated, nor compliance by the Company
with the provisions hereof or thereof, did, does or will conflict with or
result in a breach of any term or provision of the certificate of
incorporation or by-laws of the Company or conflict with, result in a
breach, violation or acceleration of, or constitute a default under, the
terms of any indenture or other agreement or instrument to which the
Company is a party or by which it or any material asset is bound, or any
statute, order or regulation applicable to the Company of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Company.
(i) There is no action, suit or proceeding against the Company
pending, or, to the knowledge of the Company, threatened, before any
court, arbitrator, administrative agency or other tribunal (i) asserting
the invalidity of this Agreement, the Pooling and Servicing Agreement, the
Mortgage Loan Purchase Agreement or the Underwritten Certificates, (ii)
seeking to prevent the issuance of the Underwritten Certificates or the
consummation of any of the transactions contemplated by this Agreement
(iii) that might materially and adversely affect the performance by the
Company of its obligations under, or the validity or enforceability of,
this Agreement, the Pooling and Servicing Agreement, the Mortgage Loan
Purchase Agreement or the Underwritten Certificates or (iv) seeking to
affect adversely the federal income tax attributes of the Underwritten
Certificates as
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described in the Prospectus.
(j) There are no contracts, indentures or other documents of a
character required by the 1933 Act or by the rules and regulations
thereunder to be described or referred to in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration Statement
which have not been so described or referred to therein or so filed or
incorporated by reference as exhibits thereto.
(k) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
offering or sale of the Underwritten Certificates pursuant to this
Agreement, except such as have been, or as of the Settlement Date will
have been, obtained or such as may otherwise be required under applicable
state securities laws in connection with the purchase and offer and sale
of the Underwritten Certificates by the Underwriters and any recordation
of the respective assignments of the Mortgage Loans to the Trustee
pursuant to the Pooling and Servicing Agreement that have not been
completed.
(l) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by it, and the Company has not received any notice of proceedings
relating to the revocation or modification of any such license,
certificate, authority or permit which, singly or in the aggregate, if the
subject of any unfavorable decision, ruling or finding, would materially
and adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company.
(m) Any taxes, fees and other governmental charges in connection
with the execution and delivery of this Agreement and the delivery and
sale of the Underwritten Certificates (other than such federal, state and
local taxes as may be payable on the income or gain recognized therefrom)
have been or will be paid at or prior to the Settlement Date.
(n) [Reserved]
(o) Neither the Company nor the Trust Fund is, and neither the sale
of the Underwritten Certificates in the manner contemplated by the
Prospectus nor the activities of the Trust Fund pursuant to the Pooling
and Servicing Agreement will cause the Company or the Trust Fund to be, an
"investment company" or under the control of an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(p) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Company reported the transfer of the
Mortgage Loans to the Trustee in exchange for the Underwritten
Certificates and will report the sale of the Underwritten Certificates to
the Underwriters pursuant to this Agreement as a sale of the interests in
the Mortgage Loans evidenced by the Underwritten Certificates. The
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consideration received by the Company upon the sale of the Underwritten
Certificates to the Underwriters will constitute reasonably equivalent
value and fair consideration for the Underwritten Certificates. The
Company will be solvent at all relevant times prior to, and will not be
rendered insolvent by, the sale of the Underwritten Certificates to the
Underwriters. In addition, the Company was solvent at all relevant times
prior to, and was not rendered insolvent by, the transfer of the Mortgage
Loans to the Trustee on behalf of the Trust Fund. The Company is not
selling the Underwritten Certificates to the Underwriters and did not
transfer the Mortgage Loans to the Trustee on behalf of the Trust Fund
with any intent to hinder, delay or defraud any of the creditors of the
Company.
(q) At the Settlement Date, the respective classes of Underwritten
Certificates shall continue to have maintained ratings no lower than those
set forth in Schedule I hereto by the nationally recognized statistical
rating organizations identified in Schedule I hereto (individually and
collectively, the "Rating Agency").
(r) At the Closing Date, each of the representations and warranties
of the Company set forth in the Certificate Purchase Agreement dated
December 29, 1998, among First Union Commercial Mortgage Securities, Inc.,
as seller, First Union National Bank and Morgan Stanley & Co.
Incorporated, as initial purchaser (the "Certificate Purchase Agreement"),
were true and correct as of such date, and each Underwriter shall be
entitled to rely upon each such representation and warranty as if such
Underwriter had been a party to the Certificate Purchase Agreement.
(II) FUNB represents and warrants to, and agrees with, each Underwriter,
that:
(a) FUNB is a national banking association validly existing under
the laws of the United States of America and possesses all requisite
authority, power, licenses, permits and franchises to carry on its
business as currently conducted by it and to execute, deliver and comply
with its obligations under the terms of this Agreement.
(b) This Agreement has been duly and validly authorized, executed
and delivered by FUNB and, assuming due authorization, execution and
delivery hereof by the Company and the Underwriters, constitutes a legal,
valid and binding obligation of FUNB, enforceable against FUNB in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights in general, as they may be
applied in the context of the insolvency of a national banking
association, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law), and by
public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement which purport to provide indemnification from
liabilities under applicable securities laws.
(c) The execution and delivery of this Agreement by FUNB and FUNB's
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performance and compliance with the terms of this Agreement will not (A)
violate FUNB's articles of association or By-Laws, (B) violate any law or
regulation or any administrative decree or order to which it is subject or
(C) 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 contract, agreement or other instrument to which FUNB is a party or by
which FUNB is bound.
(d) FUNB is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of FUNB or its properties or have
consequences that would materially and adversely affect its performance
hereunder.
(e) FUNB is not a party to or bound by any agreement or instrument
or subject to any articles of association, bylaws or any other corporate
restriction or any judgment, order, writ, injunction, decree, law or
regulation that would materially and adversely affect the ability of FUNB
to perform its obligations under this Agreement or that requires the
consent of any third person to the execution of this Agreement or the
performance by FUNB of its obligations under this Agreement (except to the
extent such consent has been obtained).
(f) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by FUNB of or compliance by FUNB with this Agreement or the
consummation of the transactions contemplated by this Agreement except as
have previously been obtained.
(g) No litigation is pending or, to the best of FUNB's knowledge,
threatened against FUNB that would prohibit its entering into this
Agreement or materially and adversely affect the performance by FUNB of
its obligations under this Agreement.
(h) Each representation and warranty of the Company set forth in
Section 1(I) hereof is true and correct as of the date hereof or as of the
date specified in such representation and warranty.
(III) Each Underwriter represents and warrants to the Company that, as of
the date hereof and as of the Settlement Date, (i) such Underwriter has complied
in all material respects with all of its obligations under Section 4 hereof and
(ii) with respect to all Computational Materials and ABS Term Sheets, if any,
provided by such Underwriter to the Company pursuant to Section 4(b)(iv), such
Computational Materials and ABS Term Sheets are accurate in all material
respects (taking into account the assumptions explicitly set forth or otherwise
referred to in the Computational Materials or ABS Term Sheets or in the
Prospectus Supplement or the Preliminary Prospectus Supplement, and provided
that the underlying data regarding the Mortgage Loans, and the related
Mortgagors and Mortgaged Properties, provided to the Underwriters by the
Mortgage Loan Seller is accurate and complete in all material respects) and
constitute a complete set of all Computational Materials and ABS Term Sheets
that are required to be filed with the Commission pursuant to the No-Action
Letters (as defined herein).
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2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties set forth herein, the Company agrees to
sell to the Underwriters, and the Underwriters agree, severally and not jointly,
to purchase from the Company, at the applicable purchase prices set forth in
Schedule I hereto, the respective principal and notional amounts of the
Underwritten Certificates set forth opposite the name of each Underwriter set
forth in Schedule II hereto, and any additional portions of the Underwritten
Certificates that any such Underwriter may be obligated to purchase pursuant to
Section 10, in all cases plus accrued interest as set forth in Schedule I.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Certificates shall be made in the manner, at the location(s), on the Settlement
Date at the time specified in Schedule I hereto (or such later date not later
than ten business days after such specified date as you shall designate), which
date and time may be changed by agreement between you and the Company or as
provided in Section 10 hereof. Delivery of the Underwritten Certificates shall
be made either directly to you or through the facilities of The Depository Trust
Company ("DTC"), as specified in Schedule I hereto, for the respective accounts
of the Underwriters against payment by the respective Underwriters through you
of the purchase price therefor in immediately available funds wired to such bank
as may be designated by the Company, or such other manner of payment as may be
agreed upon by the Company and you. Any Class of Underwritten Certificates to be
delivered through the facilities of DTC shall be represented by one or more
global Certificates registered in the name of Cede & Co., as nominee of DTC,
which global Certificate(s) shall be placed in the custody of DTC not later than
10:00 a.m. (New York City time) on the Settlement Date pursuant to a custodial
arrangement to be entered into between the Trustee or its agent and DTC. Unless
delivered through the facilities of DTC, the Underwritten Certificates shall be
in fully registered certificated form, in such denominations and registered in
such names as you may have requested in writing not less than one full business
day in advance of the Settlement Date.
The Company agrees to have the Underwritten Certificates, including the
global Certificates representing the Underwritten Certificates to be delivered
through the facilities of DTC, available for inspection, checking and, if
applicable, packaging by you in New York, New York, not later than the close of
business (New York City time) on the business day preceding the Settlement Date.
References herein, including, without limitation, in the Schedules hereto,
to actions taken or to be taken following the Settlement Date with respect to
any Underwritten Certificates that are to be delivered through the facilities of
DTC shall include, if the context so permits, actions taken or to be taken with
respect to the interests in such Certificates as reflected on the books and
records of DTC.
4. Offering by Underwriters.
(a) It is understood that the Underwriters propose to offer the
Underwritten Certificates for sale to the public, including, without
limitation, in and from the State of
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New York, as set forth in the Prospectus Supplement. It is further
understood that the Company, in reliance upon an exemption from the
Attorney General of the State of New York to be granted pursuant to Policy
Statement 104 and 105, has not and will not file the offering pursuant to
Section 352-e of the General Business Law of the State of New York with
respect to the Underwritten Certificates which are not "mortgage related
securities" as defined in the 1934 Act (as defined below). Each of the
Underwriters therefore covenants and agrees with the Company that sales of
the Class C, Class D and Class E Certificates made by such Underwriter in
and from the State of New York will be made only to institutional
investors within the meaning of Policy Statement 105.
(b) Each Underwriter may prepare and provide to prospective
investors certain Computational Materials, Structural Term Sheets or
Collateral Term Sheets in connection with its offering of the
Certificates, subject to the following conditions:
(i) Such Underwriter shall comply with the requirements of the
no-action letter, dated May 20, 1994, issued by the Commission to
Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co.
Incorporated and Kidder Structured Asset Corporation, as made
applicable to other issuers and underwriters by the Commission in
response to the request of the Public Securities Association, dated
May 25, 1994 (collectively, the "Kidder/PSA Letter"), and the
requirements of the no-action letter, dated February 17, 1995,
issued by the Commission to the Public Securities Association (the
"PSA Letter" and, together with the Kidder/PSA Letter, the
"No-Action Letters").
(ii) For purposes hereof, "Computational Materials" shall have
the meaning given such term in the No-Action Letters, but shall
include only those Computational Materials that have been prepared
or delivered to prospective investors by or at the direction of such
Underwriter. For purposes hereof, "ABS Term Sheets," "Structural
Term Sheets" and "Collateral Term Sheets" shall have the meanings
given such terms in the PSA Letter but shall include only those ABS
Term Sheets, Structural Term Sheets or Collateral Term Sheets that
have been prepared for or delivered to prospective investors by or
at the direction of such Underwriter.
(iii) All Computational Materials and ABS Term Sheets provided
to prospective investors shall bear a legend in a form previously
approved by the Company or its counsel.
(iv) Such Underwriter shall not distribute any such
Computational Materials or ABS Term Sheets unless the forms and
methodology thereof are in accordance with this Agreement. Such
Underwriter shall provide to the Company, for filing on Form 8-K as
provided in Section 5(g), copies (in such format as required by the
Company) of all Computational Materials and ABS Term Sheets. The
Underwriter may provide copies of the foregoing in a consolidated or
aggregated form including all information required to be filed. All
Computational
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Materials and ABS Term Sheets described in this subsection (iv) must
be provided to the Company (a) in paper or electronic format
suitable for filing with the Commission and (b) not later than 10:00
a.m. (New York City time) on a business day that is not less than
one business day before filing thereof is required pursuant to the
terms of the No-Action Letters.
(v) All information included in the Computational Materials
and ABS Term Sheets shall be generated based on substantially the
same methodology and assumptions as are used to generate the
information in the Prospectus Supplement as set forth therein;
provided that the Computational Materials and ABS Term Sheets may
include information based on alternative methodologies or
assumptions if specified therein. If any Computational Materials or
ABS Term Sheets were based on assumptions with respect to the
Mortgage Pool that differ from the final Pool Information in any
material respect or on Underwritten Certificate structuring
assumptions (except in the case of Computational Materials when the
different structuring terms were hypothesized and so described) that
were revised in any material respect prior to the printing of the
Prospectus, then to the extent that it has not already done so, such
Underwriter shall immediately inform the Company and, upon the
direction of the Company, and if not corrected by the Prospectus,
shall prepare revised Computational Materials and ABS Term Sheets,
as the case may be, based on the final Pool Information and
structuring assumptions, circulate such revised Computational
Materials and ABS Term Sheets to all recipients of the preliminary
versions thereof, and include such revised Computational Materials
and ABS Term Sheets (marked, "as revised") in the materials
delivered to the Company pursuant to subsection (iv) above.
(vi) The Company shall not be obligated to file any
Computational Materials or ABS Term Sheets that have been determined
to contain any material error or omission, provided that the Company
will file Computational Materials or ABS Term Sheets that contain a
material error or, when read together with the Prospectus, a
material omission if clearly marked (A) "superseded by materials
dated ____________ __" and accompanied by corrected Computational
Materials or ABS Term Sheets that are marked "material previously
dated ___________ __, as corrected", or (B) if the material error or
omission is to be corrected in the Prospectus, "superseded by
materials contained in the Prospectus." If, within the period during
which the Prospectus relating to the Underwritten Certificates is
required to be delivered under the 1933 Act, any Computational
Materials or ABS Term Sheets are determined, in the reasonable
judgment of the Company or such Underwriter, to contain a material
error or, when read together with the Prospectus, a material
omission, then (unless the material error or omission was corrected
in the Prospectus) the Underwriter shall prepare a corrected version
of such Computational Materials or ABS Term Sheets, shall circulate
such corrected Computational Materials or ABS Term Sheets to all
recipients of the prior versions thereof, and shall deliver copies
of such corrected Computational Materials or ABS Term Sheets
(marked, "as corrected") to the Company for filing with the
10
<PAGE>
Commission in a subsequent Form 8-K submission (subject to the
Company's obtaining an accountant's comfort letter in respect of
such corrected Computational Materials and ABS Term Sheets, which
shall be at the expense of such Underwriter).
(vii) Such Underwriter shall be deemed to have represented, as
of the Closing Date, that except for Computational Materials and/or
ABS Term Sheets provided to the Company pursuant to subsection (iv)
above, such Underwriter did not provide any prospective investors
with any information in written or electronic form in connection
with the offering of the Underwritten Certificates that is required
to be filed with the Commission in accordance with the No-Action
Letters.
(viii) In the event of any delay in the delivery by such
Underwriter to the Company of all Computational Materials and ABS
Term Sheets required to be delivered in accordance with subsection
(iv) above, the Company shall have the right to delay the release of
the Prospectus to investors or to the Underwriter, to delay the
Settlement Date and to take other appropriate actions in each case
as necessary in order to allow the Company to comply with its
agreement set forth in Section 5(g) to file the Computational
Materials and ABS Term Sheets by the time specified therein.
(ix) Computational Materials and ABS Term Sheets may be
distributed by the Underwriter through electronic means in
accordance with SEC Release No. 33-7233 (the "Release").
(c) Each Underwriter further agrees that it shall promptly provide
the Company with such information as to matters of fact as the Company may
reasonably request to enable it to comply with its reporting requirements
with respect to each class of Underwritten Certificates to the extent such
information can in the good faith judgment of the Underwriter be
determined by it.
5. Covenants of the Company. The Company covenants and agrees with the
Underwriters that:
(a) The Company will not file any amendment to the Registration
Statement or any supplement to the Basic Prospectus relating to or
affecting the Underwritten Certificates, unless the Company has furnished
a copy to you for your review prior to filing, and will not file any such
proposed amendment or supplement to which you reasonably object. Subject
to the foregoing sentence, the Company will cause the Prospectus
Supplement to be transmitted to the Commission for filing pursuant to Rule
424 under the 1933 Act or will cause the Prospectus Supplement to be filed
with the Commission pursuant to said Rule 424. The Company promptly will
advise you or counsel for the Underwriters (i) when the Prospectus
Supplement shall have been filed or transmitted to the Commission for
filing pursuant to Rule 424, (ii) when any amendment
11
<PAGE>
to the Registration Statement shall have become effective, (iii) of any
request by the Commission to amend the Registration Statement or
supplement the Prospectus Supplement or for any additional information in
respect of the offering contemplated hereby, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto which shall
have become effective on or prior to the Settlement Date or the
institution or threatening of any proceeding for that purpose, and (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Underwritten Certificates for sale
in any jurisdiction or the institution or threatening of any proceeding
for that purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or suspension and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Underwritten
Certificates is required to be delivered under the 1933 Act, any event
occurs as a result of which the Prospectus, as then amended or
supplemented, would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the 1933 Act or the rules and regulations
thereunder, the Company promptly will prepare and file with the
Commission, at the expense of the Company, subject to paragraph (a) of
this Section 5, an amendment or supplement that will correct such
statement or omission or an amendment that will effect such compliance
and, if such amendment or supplement is required to be contained in a
post-effective amendment to the Registration Statement, the Company will
use its best efforts to cause such amendment to the Registration Statement
to be made effective as soon as possible.
(c) The Company will furnish to you and to counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Settlement Date, and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and each such amendment and, so long as delivery of a prospectus
by an Underwriter or dealer may be required by the 1933 Act, as many
copies of any Preliminary Prospectus Supplement, the Prospectus Supplement
and the Basic Prospectus and any amendments and supplements thereto as you
may reasonably request.
(d) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify
the Underwritten Certificates for sale under the laws of such
jurisdictions as you may designate and will maintain such qualifications
in effect so long as required for the distribution of the Underwritten
Certificates; provided, however, that the Company shall not be required to
qualify to do business in any jurisdiction where it is not now qualified
or to take any action that would subject it to general or unlimited
service of process in any jurisdiction where it is not now subject to such
service of process.
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<PAGE>
(e) The Company will pay, or cause to be paid, all costs and
expenses in connection with the transactions herein contemplated,
including, but not limited to, the fees and disbursements of its counsel;
the costs and expenses of printing (or otherwise reproducing) and
delivering the Pooling and Servicing Agreement and the Underwritten
Certificates; the fees and disbursements of accountants for the Company;
the reasonable out-of-pocket costs and expenses in connection with the
qualification or exemption of the Underwritten Certificates under state
securities or "blue sky" laws, including filing fees and reasonable fees
and disbursements of counsel in connection therewith, in connection with
the preparation of any blue sky survey and in connection with any
determination of the eligibility of the Underwritten Certificates for
investment by institutional investors and the preparation of any legal
investment survey; the expenses of printing any such blue sky survey and
legal investment survey; the cost and expenses in connection with the
preparation, printing and filing of the Registration Statement (including
exhibits thereto), the Basic Prospectus, the Preliminary Prospectus
Supplement, if any, and the Prospectus Supplement, the preparation and
printing of this Agreement and the delivery to the Underwriters of such
copies of the Basic Prospectus and each Preliminary Prospectus Supplement,
if any, and Prospectus Supplement as you may reasonably request; the fees
of the Rating Agencies that are rating the Underwritten Certificates; and
the reasonable fees and disbursements of counsel to the Underwriters.
Except as provided above or in Section 7, the Underwriters shall be
responsible for paying all other costs and expenses incurred by them in
connection with the purchase and sale of the Underwritten Certificates.
(f) The Company will enforce the rights of the Underwriters as third
party beneficiaries under the Pooling and Servicing Agreement as set forth
in Section 11.09 thereof and will not consent to any amendment of the
Pooling and Servicing Agreement that would adversely affect such rights of
the Underwriters.
(g) The Company shall, as to itself, and the Company, or pursuant to
the Pooling and Servicing Agreement the Trustee, will be required to, as
to the Trust Fund, satisfy and comply with all reporting requirements of
the Securities Exchange Act of 1934, as amended (the "1934 Act"), and the
rules and regulations thereunder. The Company will also file with the
Commission a report on Form 8-K setting forth all Computational Materials
and ABS Term Sheets provided to the Company by an Underwriter and
identified by it as such within the time period allotted for such filing
pursuant to the No-Action Letters; provided, however, that prior to such
filing of the Computational Materials and ABS Term Sheets by the Company,
each Underwriter must comply with its obligations pursuant to Section
4(b). The Company shall file any corrected Computational Materials
described in Section 4(b)(vi) as soon as practicable following receipt
thereof.
6. Conditions to the Obligations of the Underwriters. The obligation of
each Underwriter hereunder to purchase its allocated share of the Underwritten
Certificates shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the date hereof, as
of the date of the effectiveness of any amendment to the Registration Statement
filed prior to the Settlement Date, as of the date the Prospectus
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<PAGE>
Supplement or any supplement thereto is filed with the Commission and as of the
Settlement Date, to the accuracy of the statements of the Company made in any
certificates delivered pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to the following additional
conditions:
(a) The Registration Statement shall have become effective and no
stop order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and not withdrawn and no
proceedings for that purpose shall have been instituted or, to the
Company's knowledge, threatened; and the Prospectus Supplement shall have
been filed or transmitted for filing with the Commission in accordance
with Rule 424 under the 1933 Act;
(b) You shall have received from Brown & Wood, counsel for the
Underwriters, a favorable opinion, dated the Closing Date, as to such
matters regarding the Underwritten Certificates as you may reasonably
request;
(c) The Company shall have delivered to you a certificate of the
Company, signed by an authorized officer of the Company and dated the
Settlement Date, to the effect that: (i) the representations and
warranties of the Company in this Agreement are true and correct in all
material respects at and as of the Settlement Date with the same effect as
if made on the Settlement Date; and (ii) the Company has in all material
respects complied with all the agreements and satisfied all the conditions
on its part that are required hereby to be performed or satisfied at or
prior to the Settlement Date; and FUNB shall have delivered to you a
certificate of FUNB, signed by an authorized officer of FUNB and dated the
Settlement Date, of the President, a Senior Vice President or a Vice
President of FUNB to the effect that: (i) the representations and
warranties of FUNB in this Agreement are true and correct in all material
respects; and (ii) FUNB has, in all material respects, complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to the Settlement Date;
(d) You shall have received with respect to each of the Company and
FUNB a good standing certificate from the Secretary of State of the State
of North Carolina, dated not earlier than 30 days prior to the Settlement
Date;
(e) (i) You shall have received from the Secretary or an assistant
secretary of the Company, in his individual capacity, a certificate, dated
the Closing Date, to the effect that: (x) each individual who, as an
officer or representative of the Company, signed this Agreement, or any
other document or certificate delivered on or before the Settlement Date
in connection with the transactions contemplated herein, was at the
respective times of such signing and delivery, and is as of the Settlement
Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such
documents and certificates are their genuine signatures; and (y) no event
(including, without limitation, any act or omission on the part of the
Company) has occurred since the date of the good standing certificate
referred to in paragraph 6(d) above which has affected the good standing
of the Company under the laws of the State of
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<PAGE>
North Carolina. Such certificate shall be accompanied by true and complete
copies (certified as such by the Secretary or an assistant secretary of
the Company) of the certificate of incorporation and by-laws of the
Company, as in effect on the Settlement Date, and of the resolutions of
the Company and any required shareholder consent relating to the
transactions contemplated in this Agreement; and (ii) you shall have
received from the Secretary or an assistant secretary of the FUNB, in his
individual capacity, a certificate, dated the Settlement Date, to the
effect that: (x) each individual who, as an officer or representative of
FUNB, signed this Agreement or any other document or certificate delivered
on or before the Settlement Date in connection with the transactions
contemplated herein, was at the respective times of such signing and
delivery, and is as of the Settlement Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures
of such persons appearing on such documents and certificates are their
genuine signatures; and (y) no event (including, without limitation, any
act or omission on the part of FUNB) has occurred since the date of the
good standing certificate referred to in paragraph 6(d) above which has
affected the good standing of FUNB under the laws of the United States of
America. Such certificate shall be accompanied by true and complete copies
(certified as such by the Secretary or an assistant secretary of FUNB) of
the articles of association or by-laws of FUNB, as in effect on the
Settlement Date, and of the resolutions of FUNB and any required
shareholder consent relating to the transactions contemplated in this
Agreement;
(f) You shall have received from Willkie Farr & Gallagher, special
counsel for the Company, a favorable opinion, dated the Settlement Date
and satisfactory in form and substance to you and counsel for the
Underwriters, to the effect that:
(i) The Registration Statement and any amendments thereto have
become effective under the 1933 Act; to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and not
withdrawn, no proceedings for that purpose have been instituted or
threatened and not terminated; and the Registration Statement, the
Basic Prospectus, the Prospectus Supplement and each amendment or
supplement thereto, as of their respective effective or issue dates
(other than the financial statements, schedules and other financial
and statistical information contained therein as to which such
counsel need express no opinion), complied as to form in all
material respects with the applicable requirements of the 1933 Act
and the rules and regulations thereunder; and such counsel has no
reason to believe that (A) the Registration Statement (which, for
purposes of this clause, shall be deemed not to include any exhibits
filed therewith), or any amendment thereto, at the time it became
effective, contained or, as of the date of such opinion, contains
any untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, or that (B) the Prospectus,
as amended or supplemented, as of the respective date thereof and at
the date hereof, contained or contains any untrue statement of a
material fact or omits to state a material fact necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not
15
<PAGE>
misleading (other than the financial statements, schedules and other
financial and statistical information contained therein as to which
such counsel need express no opinion);
(ii) To the best knowledge of such counsel, there are no
material contracts, indentures or other documents of a character
required to be described or referred to in the Registration
Statement, as amended, or the Prospectus or to be filed as exhibits
to the Registration Statement, as amended, other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto;
(iii) To the best knowledge of such counsel, there are no
actions, proceedings or investigations pending before or threatened
by any court, administrative agency or other tribunal to which the
Company is a party or of which any of its properties is the subject
(a) which if determined adversely to the Company would have a
material adverse effect on the business or financial condition of
the Company, (b) asserting the invalidity of this Agreement or the
Underwritten Certificates, (c) seeking to prevent the sale of the
Underwritten Certificates or the consummation by the Company of any
of the transactions contemplated by this Agreement, as the case may
be, or (d) which might materially and adversely affect the
performance by the Company of its obligations under, or the validity
or enforceability of, this Agreement or the Underwritten
Certificates;
(iv) This Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid, legal, binding
and enforceable agreement of the Company, subject, as to
enforceability, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights
generally, to general principles of equity regardless of whether
enforcement is sought in a proceeding in equity or at law and public
policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of
the provisions of this Agreement that purports to provide
indemnification from securities law liabilities;
(v) [Reserved]
(vi) The statements set forth in the Prospectus Supplement
under the headings "Description of the Certificates" and "Servicing
of the Mortgage Loans" and in the Basic Prospectus under the
headings "Description of the Certificates" and "Description of the
Pooling Agreements", insofar as such statements purport to summarize
certain provisions of the Underwritten Certificates and the Pooling
and Servicing Agreement, are true and correct in all material
respects;
(vii) The statements set forth in the Basic Prospectus and the
Prospectus Supplement under the headings "Material Federal Income
Tax Consequences", "ERISA Considerations" and "Legal Investment", to
the extent that they constitute
16
<PAGE>
matters of federal law or legal conclusions with respect thereto,
are correct in all material respects with respect to those
consequences or aspects that are discussed;
(viii) Any Class of Underwritten Certificates will be
"mortgage related securities", as defined in Section 3(a)(41) of the
1934 Act, so long as such Certificates are rated "AAA" or "AA" (or
its equivalent) by at least one nationally recognized statistical
rating organization;
(ix) [Reserved]
(x) No consent, approval, authorization or order of any State
of New York or federal court or governmental agency or body is
required for the consummation by the Company of the transactions
contemplated herein, except (A) such as have been obtained under the
1933 Act; (B) such as may be required under the blue sky laws of any
jurisdiction in connection with the offer and sale of the
Underwritten Certificates by the Underwriters, as to which such
counsel need express no opinion; and (C) any recordation of the
assignments of the Mortgage Loans pursuant to the Pooling and
Servicing Agreement that has not yet been completed.
(xi) Assuming compliance with all provisions of the Pooling
and Servicing Agreement, for federal income tax purposes, REMIC I,
REMIC II, REMIC III and REMIC IV will each qualify as a real estate
mortgage investment conduit (a "REMIC") under the Internal Revenue
Code of 1986 (the "Code"), the Class R-I Certificates will be the
sole class of "residual interests" in REMIC I, the Class R-II
Certificates will be the sole class of "residual interests" in REMIC
II, the Class R-III Certificates will be the sole class of "residual
interests" in REMIC III, the Class R-IV Certificates will be the
sole class of "residual interests" in REMIC IV and the Class A-1,
Class A-2, Class IO-1, Class B, Class C, Class D, Class E, Class
IO-2, Class F, Class G and Class H Certificates will be the "regular
interests" in REMIC IV; and
(xii) The Certificates conform in all material respects to the
description thereof contained in the Prospectus; and the Pooling and
Servicing Agreement conforms in all material respects to the
description thereof contained in the Prospectus.
With respect to such opinion, such counsel may express its reliance
as to factual matters on the representations and warranties made by, and
on certificates or other documents furnished by officers of, the parties
to this Agreement and the Pooling and Servicing Agreement; may assume the
due authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the Company; may
qualify such opinion only as to the federal laws of the United States of
America, the laws of the State of New York, the laws of the State of North
Carolina and the corporation law of the State of Delaware; and may, to the
extent deemed necessary by
17
<PAGE>
such counsel, rely on the opinion of counsel in the regular employ of the
Company or any affiliate of the Company or independent North Carolina
counsel. Such counsel shall also confirm that the Underwriters may rely,
on and as of the Settlement Date, on any opinion or opinions of such
counsel submitted to any Rating Agency as if addressed to the Underwriters
and dated the Settlement Date;
(g) You shall have received from Paul Hurdle, counsel for the
Company and FUNB, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to you and counsel for the
Underwriters, to the effect that:
(i) The Company is a corporation in good standing under the
laws of the State of North Carolina and has the corporate power and
authority to enter into and perform its obligations under this
Agreement.
(ii) No consent, approval, authorization or order of the State
of North Carolina is required for the consummation by the Company of
the transactions contemplated herein.
(iii) Neither the sale of the Underwritten Certificates, nor
the execution or delivery of or performance under this Agreement,
nor the consummation of any other of the transactions contemplated
herein will conflict with or result in a breach or violation of any
term or provision of, or constitute a default (or an event which
with the passing of time or notification, or both, would constitute
a default) under, the certificate of incorporation or by-laws of the
Company, or, to the knowledge of such counsel, any indenture or
other agreement or instrument to which the Company is a party or by
which it is bound, or any State of North Carolina or federal statute
or regulation applicable to the Company, or, to the knowledge of
such counsel, any order of any State of North Carolina or federal
court, regulatory body, administrative agency or governmental body
having jurisdiction over the Company.
(iv) FUNB is a national banking association validly existing
under the laws of the United States of America and possesses all
requisite power and authority to enter into and perform its
obligations under this Agreement.
(v) This Agreement has been duly authorized, executed and
delivered by FUNB.
(vi) This Agreement, upon due authorization, execution and
delivery by the other parties hereto, will constitute a valid, legal
and binding agreement of FUNB, enforceable against FUNB in
accordance with its terms, except as enforceability may be limited
by (a) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors generally, as they may be
applied in the context of the insolvency of a national banking
association, (b) general principles
18
<PAGE>
of equity, regardless of whether enforcement is sought in a
proceeding in equity or at law, and (c) public policy considerations
underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of provisions which
purport to provide indemnification from securities law liabilities.
(vii) No consent, approval, authorization or order of any
federal court or governmental agency or body is required for the
consummation by FUNB of the transactions contemplated by this
Agreement, except such as may be required under the "Blue Sky" laws
of any jurisdiction in connection with the purchase and the offer
and sale of the Certificates by the Underwriters, as to which such
counsel express no opinion.
(viii) The fulfillment of the terms of this Agreement will not
conflict with or result in a breach or violation of any term or
provision of, or constitute a default (or an event which with the
passing of time or notification, or both, would constitute a
material default) under, the articles of association or by-laws of
FUNB or, to such counsel's knowledge, any contract, agreement or
other instrument to which FUNB is a party or by which it is bound,
or any federal statute or regulation applicable to FUNB or, to such
counsel's knowledge, any order of any federal court, regulatory
body, administrative agency or governmental body having jurisdiction
over FUNB.
(ix) To the best knowledge of such counsel, there are no
actions, proceedings or investigations pending before or threatened
by any court, administrative agency or other tribunal to which FUNB
is a party or of which any of its properties is the subject (a)
which, if determined adversely to FUNB, would have a material
adverse effect on the business or financial condition of FUNB, (b)
asserting the invalidity of this Agreement, (c) seeking to prevent
the consummation by FUNB of any of the transactions contemplated by
this Agreement or (d) which might materially and adversely affect
the performance by FUNB of its obligations under, or the validity or
enforceability of this Agreement.
(h) You shall have received from Deloitte & Touche LLP, certified
public accountants, a letter dated the Settlement Date and satisfactory in
form and substance to you and counsel for the Underwriters, to the
following effect:
(1) they have performed certain specified procedures as a
result of which they have determined that the information of an
accounting, financial or statistical nature set forth in the
Prospectus Supplement under the captions "Summary of the Prospectus
Supplement," "Description of the Mortgage Pool" and "Yield and
Maturity Considerations" and on Annex A agrees with the data sheet
or computer tape prepared by or on behalf of the Mortgage Loan
Seller, unless non-material deviations are otherwise noted in such
letter; and
(2) they have compared the data contained in the data sheet or
computer
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<PAGE>
tape referred to in the immediately preceding clause (1) to
information contained in an agreed upon sampling of the Mortgage
Loan files and in such other sources as shall be specified by them,
and found such data and information to be in agreement in all
material respects, unless non-material deviations are otherwise
noted in such letter;
(i) You shall have received written confirmation from the Rating
Agencies that the ratings assigned to the Underwritten Certificates on the
Closing Date are as described on Schedule I hereto and that, as of the
Settlement Date, no notice has been given of (i) any intended or possible
downgrading or (ii) any review or possible changes in such ratings;
(j) [Reserved]
(k) You shall have received from the Secretary or an assistant
secretary of the Trustee, in his individual capacity, a certificate, dated
the Settlement Date, to the effect that the information under the heading
"Description of the Certificates - The Trustee" in the Prospectus
Supplement is true and correct in all material respects;
(l) You shall have received from Cadwalader, Wickersham & Taft,
counsel for the Trustee, written confirmation that the Underwriters may
rely on the opinion of such counsel delivered on the Closing Date pursuant
to the Certificate Purchase Agreement as if such opinion has been
addressed to the Underwriters;
(m) [Reserved]
(n) You shall have received from the Secretary or an assistant
secretary of the Master Servicer, in his individual capacity, a
certificate, dated the Settlement Date, to the effect that the information
relating to the Master Servicer under the heading "Servicing of the
Mortgage Loans - The Master Servicer and Special Servicer" in the
Prospectus Supplement, is true and correct in all material respects;
(o) You shall have received from Kilpatrick Stockton, LLP, counsel
for the Master Servicer, written confirmation that the Underwriters may
rely on the opinion of such counsel delivered on the Closing Date pursuant
to the Certificate Purchase Agreement, as if such opinion has been
addressed to the Underwriters;
(p) [Reserved]
(q) You shall have received from the Secretary or an assistant
secretary of the Special Servicer, in his individual capacity, a
certificate, dated the Settlement Date, to the effect that the information
relating to the Special Servicer under the heading "Servicing of the
Mortgage Loans- The Master Servicer and Special Servicer" in the
Prospectus Supplement, is true and correct in all material respects;
20
<PAGE>
(r) You shall have received from Peabody & Brown, counsel for the
Special Servicer, written confirmation that the Underwriters may rely on
the opinion of such counsel delivered on the Closing Date pursuant to the
Certificate Purchase Agreement, as if such opinion has been addressed to
the Underwriters;
(s) [Reserved]
(t) You shall have received from Paul Hurdle, counsel for the
Mortgage Loan Seller, written confirmation that the Underwriters may rely
on any opinion or opinions of such counsel delivered on the Closing Date
pursuant to the Mortgage Loan Purchase Agreement or addressed to any
Rating Agency, in each case as if such opinion were addressed to the
Underwriters;
(u) You shall have received from Willkie Farr & Gallagher, special
counsel for the Company, written confirmation that the Underwriters may
rely on the opinions of such counsel with respect to the transfer of the
Mortgage Loans to the Company and all other opinions delivered to the
Rating Agencies in connection with the transactions contemplated hereby,
as if such opinions had been addressed to the Underwriters;
(v) You shall have received from Willkie Farr & Gallagher, special
counsel for the Company, written confirmation that the Underwriters may
rely on the opinions of such counsel delivered under the Certificate
Purchase Agreement, as if such opinions had been addressed to the
Underwriters;
(w) You shall have received from Paul Hurdle, counsel for the
Company and FUNB, written confirmation that the Underwriters may rely on
the opinions of such counsel delivered on the Closing Date pursuant to the
Certificate Purchase Agreement, as if such opinions had been addressed to
the Underwriters; and
(x) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be satisfactory
in form and substance to you and counsel for the Underwriters, and you and
such counsel shall have received such additional information, certificates
and documents as you or they may have reasonably requested.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if the Company is in breach of any covenants or agreements contained herein or
if any of the opinions and certificates referred to above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to you and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Settlement Date by you. Notice of such cancellation shall be given
to the Company in writing, or by telephone or telegraph confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Underwritten
21
<PAGE>
Certificates provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 is not satisfied or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof, other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally, upon demand, for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Underwritten
Certificates.
8. Indemnification.
(a) The Company and FUNB, jointly and severally, agree to indemnify
and hold harmless each Underwriter, its directors and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of (1) any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), or the
omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Basic Prospectus, any
Preliminary Prospectus Supplement or the Prospectus Supplement (or
any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading or (2) any error in the information
supplied to the Underwriters relating to the Mortgage Loans other
than information contained in the Preliminary Prospectus Supplement
or the Prospectus Supplement (the "Collateral Information");
provided that such Collateral Information is used in a manner not
inconsistent with the 1933 Act; provided, further, that no indemnity
shall be provided if the Collateral Information was corrected and
such corrected materials were supplied to the Underwriters prior to
the dissemination of the materials with respect to which such loss,
liability, claim, damage or expense was incurred; and provided
further, that the foregoing indemnity with respect to the Basic
Prospectus or any Preliminary Prospectus Supplement shall not inure
to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting claims
giving rise to any such losses, claims, damages, expenses or
liabilities purchased Underwritten Certificates if such untrue
statement or omission or alleged untrue statement or omission made
in any Preliminary Prospectus Supplement is eliminated or remedied
in the Prospectus and, if required by law, a copy of the Prospectus
shall not have been furnished to such person at or prior to the
written confirmation of the sale of such Certificates to such
person;
(ii) against any and all loss, liability, claim, damage and
expense
22
<PAGE>
whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such
Underwriter or, if more than one Underwriter is involved, by the
Representative), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information (as specified
in Section 8(b) below) furnished to the Company by any Underwriter
expressly for use in the Registration Statement (or any amendment thereto)
or in the Basic Prospectus, any Preliminary Prospectus Supplement or the
Prospectus Supplement (or any amendment or supplement thereto).
(b) Each Underwriter, severally but not jointly, agrees to indemnify
and hold harmless the Company, its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or in the Basic
Prospectus, any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter expressly for use in the Registration Statement (or any
amendment thereto) or in the Basic Prospectus, such Preliminary Prospectus
Supplement or the Prospectus Supplement (or any amendment or supplement
thereto); in addition, each Underwriter, severally but not jointly, shall
indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act, against any and all losses,
liabilities, claims and damages as incurred arising out of any untrue
statement or alleged untrue statement of a material fact or omission or
alleged omission of a material fact contained in any ABS Term Sheets or
Computational Materials which, when read together with any Preliminary
Prospectus Supplement and the Prospectus Supplement, was required to be
stated therein or necessary to make the statements therein not misleading;
provided, that no such material misstatement or
23
<PAGE>
omission arises from an error or omission in information relating to the
underlying data regarding the Mortgage Loans or the related Mortgagors or
Mortgaged Properties provided by the Company to such Underwriter; and
provided, further, that any such ABS Term Sheets or Computational
Materials were prepared by such Underwriter and distributed by such
Underwriter. It is hereby acknowledged that (i) the statements set forth
in the second clause of the last paragraph on the cover of the Prospectus
Supplement, (ii) the statements in the third and fifth paragraphs under
the caption "Method of Distribution" in the Prospectus Supplement and
(iii) the statements in any Computational Materials and ABS Term Sheets
delivered by the Underwriters to the Company for filing with the
Commission pursuant to this Agreement and the No-Action Letters,
constitute the only written information furnished to the Company by the
Underwriters expressly for use in the Registration Statement (or any
amendment thereto) or in the Basic Prospectus, the Preliminary Prospectus
Supplement or the Prospectus Supplement (or any amendment or supplement
thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate
at its own expense in the defense of any such action and, to the extent
that it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from the indemnified party,
to assume the defense thereof, with counsel satisfactory to such
indemnified party. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i)
the indemnifying party and the indemnified party shall have agreed to the
retention of such counsel, or (ii) the indemnifying party shall not have
assumed the defense of such action, with counsel satisfactory to the
indemnified party, within a reasonable period following the indemnifying
party's receiving notice of such action, or (iii) the named parties to any
such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. In no event shall the
indemnifying party or parties be liable for fees and expenses of more than
one counsel (or, in the event the Company is the indemnifying party, one
counsel for each Underwriter) (in addition to any local counsel) separate
from its or their own counsel for all indemnified parties in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
Unless it shall assume the defense of any proceeding, an indemnifying
party shall not be liable for any settlement of any proceeding effected
without its written consent but, if settled with such consent or if there
be a final judgment for the plaintiff, the indemnifying party shall
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. If an indemnifying party assumes
the defense of any proceeding, it shall be entitled to settle such
proceeding with the consent of the indemnified party or, if such
settlement provides for release of the indemnified party in connection
with all matters relating to the proceeding
24
<PAGE>
that have been asserted against the indemnified party in such proceeding
by the other parties to such settlement, without the consent of the
indemnified party.
(d) The indemnity agreements contained in this Section 8 shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Company,
the Underwriters, any of their respective directors or officers, or any
person controlling the Company or the Underwriters, and (iii) acceptance
of and payment for any of the Underwritten Certificates.
9. Contribution. (a) In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, or if such
indemnification provided for in Section 8 hereof is insufficient in respect of
any losses, liabilities, claims or damages referred to therein, the Company and
the Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Underwriters, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and each Underwriter on the other from the offering of
the Underwritten Certificates or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the Underwriters
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative fault of the Company on the one hand and
of the Underwriters on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation; and provided, further, that in no event shall
either Underwriter be obligated to contribute more than its share of the
underwriting discounts and commissions pertaining to the Underwritten
Certificates. It is hereby acknowledged that the respective Underwriters'
obligations under this Section 9 shall be several and not joint. For purposes of
this Section, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and such
Underwriter's directors, shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company.
(b) The parties hereto agree that it would not be just and equitable
if contribution were determined by pro rata allocation or by any other
method of allocation that does not take account of the considerations
referred to in subsection (a) above. The amount paid or payable by an
indemnified party as a result of the losses, liabilities, claims
25
<PAGE>
or damages referred to in Section 8 or this Section 9 shall be deemed to
include any legal fees and disbursements or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such claim except where the indemnified party is required to
bear such expenses, which expenses the indemnifying party shall pay as and
when incurred, at the request of the indemnified party, to the extent that
it is reasonable to believe that the indemnifying party will be ultimately
obligated to pay such expenses. In the event that any expenses so paid by
the indemnifying party are subsequently determined to not be required to
be borne by the indemnifying party hereunder, the party which received
such payment shall promptly refund the amount so paid to the party which
made such payment. The remedies provided for in Section 8 and this Section
9 are not exclusive and shall not limit any rights or remedies that may
otherwise be available to any indemnified party at law or in equity.
(c) The contribution agreements contained in this Section 9 shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Company,
the Underwriters, any of their respective directors or officers, or any
person controlling the Company or the Underwriters, and (iii) acceptance
of and payment for any of the Underwritten Certificates.
10. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Underwritten Certificates agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally (in the respective proportions which the portion of the Underwritten
Certificates set forth opposite their names in Schedule II hereto bears to the
aggregate amount of Underwritten Certificates set forth opposite the names of
all the remaining Underwriters) to purchase the Underwritten Certificates that
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the amount of Underwritten
Certificates that the defaulting Underwriter or Underwriters agreed but failed
to purchase shall exceed 10% of the aggregate principal amount of Underwritten
Certificates set forth in Schedule II hereto, the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the Underwritten Certificates, and if such nondefaulting
Underwriters do not purchase all of the Underwritten Certificates, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company, except as provided in Section 11 or Section 12. In the event of a
default by any Underwriter as set forth in this Section 10, the Settlement Date
for the Underwritten Certificates shall be postponed for such period, not
exceeding ten business days, as you shall determine in order that the required
changes in the Registration Statement and the Prospectus Supplement or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
11. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in
26
<PAGE>
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter, or by or on behalf of the Company, or by or on behalf of any of
the controlling persons and officers and directors referred to in Sections 8 and
9, and shall survive delivery of the Underwritten Certificates to the
Underwriters.
12. Termination of Agreement; Survival.
(a) The Underwriters may terminate this Agreement, by notice to the
Company, at any time at or prior to the Settlement Date (i) if there has
been, since the date of this Agreement or since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company, FUNB and their respective subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any outbreak of hostilities or escalation
thereof or other calamity or crisis the effect of which is such as to make
it, in the reasonable judgment of either Underwriter, impracticable to
market the Underwritten Certificates or to enforce contracts for the sale
of the Underwritten Certificates, or (iii) if trading generally on the New
York Stock Exchange has been suspended, or if a banking moratorium has
been declared by either federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party,
except as provided in Section 11 or Section 12 (c).
(c) The provisions of Section 5(e) regarding the payment of costs
and expenses and the provisions of Sections 8 and 9 hereof shall survive
the termination of this Agreement.
13. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to One First Union Center, Charlotte, North Carolina 28288-0166,
Attention: R. Owen Williams and to Morgan Stanley & Co. Incorporated, 1585
Broadway, New York, New York 10036, Attention: Russell Rahbany; notices to FUNB
shall be directed to it at One First Union Center, Charlotte, North Carolina
28288-0166, Attention: Craig Lieberman and notices to the Company shall be
directed to it at First Union Commercial Mortgage Securities, Inc., One First
Union Center, Charlotte, North Carolina 28288-0166, Attention: President; or, in
either case, such other address as may hereafter be furnished by the
Underwriters, FUNB or the Company to the other such parties in writing.
14. Parties. This Agreement shall inure to the benefit of and be binding
upon each of the Underwriters, the Company and FUNB and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Company and FUNB and their respective successors and the
controlling persons and officers and directors referred to in Sections 8 and 9
27
<PAGE>
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Company and
FUNB and their respective successors, and said controlling persons and officers
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Underwritten Certificates
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
15. Applicable Law; Counterparts. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely in said State. This Agreement may
be executed in any number of counterparts, each of which shall for all purposes
be deemed to be an original and all of which shall together constitute but one
and the same instrument.
28
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, FUNB and the several Underwriters.
Very truly yours,
FIRST UNION COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ CRAIG LIEBERMAN
---------------------
Name: Craig Lieberman
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ CRAIG LIEBERMAN
---------------------
Name: Craig Lieberman
Title: Vice President
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
FIRST UNION CAPITAL MARKETS,
A DIVISION OF WHEAT FIRST
SECURITIES, INC.
By: /s/ WILLIAM W. INGRAM
---------------------
Name: William W. Ingram
Title: Managing Director
MORGAN STANLEY & CO. INCORPORATED
By: /s/ RUSSELL RAHBANY
-------------------
Name: Russell Rahbany
Title: Principal
<PAGE>
SCHEDULE I
Underwriting Agreement dated January 21, 1999:
As used in this Schedule I, the term "Registration Statement" refers to
registration statement No. 333-62671 filed by the Company on Form S-3 and
declared effective on January 8, 1999. The term "Basic Prospectus" refers to the
form of prospectus in the Registration Statement or such later form as most
recently filed by the Company pursuant to Rule 424(b) under the Securities Act
of 1933, as amended. The term "Prospectus Supplement" refers to the supplement
dated January 21, 1999 to the Basic Prospectus, relating to the mortgage
pass-through certificates being sold pursuant to the Underwriting Agreement (the
"Underwritten Certificates").
Mortgage Pool:
Two hundred and thirty-eight commercial mortgage loans, having an
aggregate principal balance, after giving effect to payments of principal due on
or before February 1, 1999 (the "Cut-Off Date"), of $1,163,518,250 (the "Cut-Off
Date Pool Balance"), and otherwise complying in all material respects with the
description thereof set forth in the Prospectus Supplement.
Title, Purchase Price and Description of Underwritten Certificates:
First Union Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates FUNB Series 1999-C1, Class A-1, Class A-2, Class IO-1, Class B,
Class C, Class D and Class E.
Settlement Date
Aggregate Pass- Purchase
Certificate Through Price
Designation Principal Balance Rate Rating (1) Percentage (2)
- ----------- ----------------- ---- ---------- --------------
Class A-1 $222,414,205 5.73% Aaa/AAA 100.4833%
Class A-2 $608,949,000 6.07% Aaa/AAA 101.4829%
Class IO-1 N/A (3) Aaa/AAAr 6.2560%
Class B $58,273,000 6.22% Aa2/AA 101.4852%
Class C $61,186,000 (4) A2/A 101.4367%
Class D $67,014,000 (4) Baa2/BBB 95.5940%
Class E $17,482,000 (4) Baa3/BBB- 87.0025%
- --------------------
(1) By each of Moody's Investors Service, Inc. and Standard & Poor's Ratings
Services, a division of The McGraw-Hill Companies, Inc.
(2) There shall be added to the purchase price for each Class of Underwritten
Certificates
<PAGE>
accrued interest, if any, at the initial Pass-Through Rate for such Class
from February 1, 1999, up to, but not including, February 4, 1999.
(3) The Class IO-1 Certificates will not have a Certificate Principal Balance
nor will they entitle the holders thereof to receive distributions of
principal, but are entitled to receive payments on the aggregate interest
accrued at a variable rate on the notional amount of each component of the
Class IO-1 Certificates, as described in the Prospectus Supplement.
(4) The Class C, Class D and Class E Certificates shall each accrue interest
on the respective principal balance thereof from time to time at a
variable rate equal to the Weighted Net Mortgage Rate minus 0.51%, 0.03%
and 0.03%, respectively (as described in the Prospectus Supplement).
Credit Support and Other Terms and Conditions of the Underwritten
Certificates: As described in the Prospectus Supplement.
Closing Time, Settlement Date and Location: 10:00 a.m. (New York City time) on
February 4, 1999 at the offices of Willkie Farr & Gallagher, 787 Seventh Avenue,
New York, New York 10019-6099; except that delivery of the Underwritten
Certificates shall be made through the facilities of The Depository Trust
Company.
Initial Public Offering Price: The Underwritten Certificates will be offered to
the public in negotiated transactions or otherwise at varying prices to be
determined at the time of sale.
<PAGE>
SCHEDULE II
Underwriting Agreement dated January 21, 1999
50/50 Split
Approximate Aggregate
Principal or Notional
Amount of Certificates
Underwriters Class to be Purchased
- ------------ ----- ----------------------
First Union Capital Markets, a division of Wheat First Securities, Inc.
Class A-1 $111,207,105
Class A-2 $304,474,500
Class IO-1 $261,518,304(Notional)
Class B $ 29,136,500
Class C $ 30,593,000
Class D $ 33,507,000
Class E $ 8,741,000
Morgan Stanley & Co. Incorporated
Class A-1 $111,207,100
Class A-2 $304,474,500
Class IO-1 $261,518,304(Notional)
Class B $ 29,136,500
Class C $ 30,593,000
Class D $ 33,507,000
Class E $ 8,741,000
Execution Copy
================================================================================
FIRST UNION COMMERCIAL MORTGAGE SECURITIES, INC.
Depositor
and
FIRST UNION NATIONAL BANK
-------------------------
Master Servicer
and
LENNAR PARTNERS, INC.
---------------------
Special Servicer
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
--------------------------------------------
Trustee
POOLING AND SERVICING AGREEMENT
-------------------------------
Dated as of December 1, 1998
--------------
$1,165,454,046
Commercial Mortgage Pass-Through Certificates
FUNB Series 1999-C1
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS........................................................4
SECTION 1.01. Defined Terms................................................4
30/360 Basis........................................................5
Accrued Certificate Interest........................................5
Accrued Component Interest..........................................5
Acquisition Date....................................................5
Actual/360 Basis....................................................5
Actual-360 Mortgage Loan............................................5
Additional Trust Fund Expense.......................................5
Additional Yield Amount.............................................6
Advance.............................................................6
Adverse REMIC Event.................................................6
Affiliate...........................................................6
Agreement...........................................................6
Appraisal...........................................................6
Appraisal Reduction Amount..........................................6
Appraised Value.....................................................7
"Asset Status Report"...............................................7
Assignment of Leases................................................7
Assumed Scheduled Payment...........................................7
Authenticating Agent................................................7
Available Distribution Amount.......................................7
Balloon Mortgage Loan...............................................8
Balloon Payment.....................................................8
Bankruptcy Code.....................................................8
Book-Entry Certificate..............................................9
Breach..............................................................9
Business Day........................................................9
CERCLA..............................................................9
Certificate.........................................................9
Certificate Account.................................................9
Certificate Factor..................................................9
Certificate Notional Amount.........................................9
Certificate Owner...................................................9
Certificate Principal Balance......................................10
Certificate Register...............................................10
Certificateholder..................................................10
Class..............................................................10
Class A Certificates...............................................10
Class A-1 Certificate..............................................10
i
<PAGE>
Class A-2 Certificate..............................................10
Class B Certificate................................................11
Class C Certificate................................................11
Class D Certificate................................................11
Class E Certificate................................................11
Class F Certificate................................................11
Class G Certificate................................................11
Class H Certificate................................................11
Class IO-1 Certificate.............................................12
Class IO-2 Certificate.............................................12
Class Notional Amount..............................................12
Class Principal Balance............................................12
Class R-I Certificate..............................................12
Class R-II Certificate.............................................12
Class R-III Certificate............................................13
Class R-IV Certificate.............................................13
Closing Date.......................................................13
Code...............................................................13
Collection Period..................................................13
Comparative Financial Status Report................................13
Component..........................................................13
Component Notional Amount..........................................13
Controlling Class..................................................14
Controlling Class Representative...................................14
Corporate Trust Office.............................................14
Corrected Mortgage Loan............................................14
Corresponding......................................................14
Credit Lease.......................................................14
Credit Lease Loan..................................................14
CSSA Loan File Report..............................................14
CSSA Property File Report..........................................15
Custodian..........................................................15
Cut-off Date.......................................................15
Cut-off Date Balance...............................................15
Debt Service Coverage Ratio........................................15
Defaulted Mortgage Loan............................................15
Defeasance Collateral..............................................15
Defeasance Loan....................................................15
Definitive Certificate.............................................16
Delinquent Loan Status Report......................................16
Depositor..........................................................16
Depository.........................................................16
Depository Participant.............................................16
Determination Date.................................................16
Directly Operate...................................................16
ii
<PAGE>
Discount Rate......................................................16
Disqualified Organization..........................................17
Distributable Certificate Interest.................................17
Distribution Account...............................................17
Distribution Date..................................................17
Distribution Date Statement........................................17
Document Defect....................................................17
Due Date...........................................................18
Eligible Account...................................................18
Environmental Assessment...........................................18
ERISA..............................................................18
Escrow Payment.....................................................18
Event of Default...................................................18
Exchange Act.......................................................18
Excluded Class.....................................................19
FDIC...............................................................19
FHLMC..............................................................19
Final Recovery Determination.......................................19
First Union Capital................................................19
FNMA...............................................................19
Grace Mortgage Loan................................................19
Ground Lease.......................................................19
Guaranty...........................................................19
Hazardous Materials................................................19
Historical Loan Modification Report................................19
Historical Loss Estimate Report....................................20
Holder.............................................................20
HUD-Approved Servicer..............................................20
Impound Reserve....................................................20
Independent........................................................20
Independent Appraiser..............................................20
Independent Contractor.............................................20
Insured Balloon Loan...............................................21
Insured Event......................................................21
Insurance Policy...................................................21
Insurance Proceeds.................................................21
Interest Reserve Account...........................................21
Interest Reserve Amount............................................21
Interest Reserve Loan..............................................21
Interested Person..................................................22
Internet Website...................................................22
Investment Account.................................................22
Issue Price........................................................22
Late Collections...................................................22
Lease Enhancement Policy...........................................22
iii
<PAGE>
Lease Enhancement Policy Issuer....................................22
Legal Final Distribution Date......................................22
Liquidation Event..................................................22
Liquidation Proceeds...............................................23
Loan Payoff Notification Report....................................23
Loan-to-Value Ratio................................................23
Lockout Period.....................................................23
Majority Subordinate Certificateholder.............................23
Master Servicer....................................................24
Master Servicing Fee...............................................24
Master Servicing Fee Rate..........................................24
Moody's............................................................24
Mortgage...........................................................24
Mortgage File......................................................24
Mortgage Loan......................................................26
Mortgage Loan Purchase Agreement...................................26
Mortgage Loan Schedule.............................................26
Mortgage Loan Seller...............................................27
Mortgage Note......................................................27
Mortgage Pool......................................................27
Mortgage Rate......................................................27
Mortgaged Property.................................................27
Mortgagor..........................................................27
Net Aggregate Prepayment Interest Shortfall........................27
Net Investment Earnings............................................28
Net Investment Loss................................................28
Net Mortgage Rate..................................................28
Net Operating Income or NOI........................................28
New Lease..........................................................28
NOI Adjustment Worksheet...........................................28
Nonrecoverable Advance.............................................28
Nonrecoverable P&I Advance.........................................28
Nonrecoverable Servicing Advance...................................29
Non-Registered Certificate.........................................29
Non-United States Person...........................................29
Officers' Certificate..............................................29
Operating Statement Analysis.......................................29
Opinion of Counsel.................................................29
Original Notional Amount...........................................29
Original Principal Balance.........................................29
OTS................................................................29
Ownership Interest.................................................29
Pass-Through Rate..................................................29
Paying Agent.......................................................30
P&I Advance........................................................30
iv
<PAGE>
P&I Advance Date...................................................30
Penalty Interest...................................................30
Percentage Interest................................................30
Periodic Payment...................................................30
Permitted Investments..............................................30
Permitted Transferee...............................................32
Person.............................................................32
Plurality Residual Certificateholder...............................32
Policy Termination Event...........................................32
Prepayment Assumption..............................................32
Prepayment Interest Excess.........................................32
Prepayment Interest Shortfall......................................33
Prepayment Premium.................................................33
Prime Rate.........................................................33
Principal Distribution Amount......................................33
Principal Prepayment...............................................34
Principal Recovery Fee.............................................35
Private Placement Memorandum.......................................35
Privileged Person..................................................35
Prospectus.........................................................35
Prospectus Supplement..............................................35
Purchase Price.....................................................35
Qualified Insurer..................................................35
Qualified Substitute Mortgage Loan.................................35
Rated Final Distribution Date......................................36
Rating Agency......................................................36
Realized Loss......................................................36
Record Date........................................................37
Registered Certificate.............................................37
Regular Certificate................................................37
Reimbursement Rate.................................................37
REMIC..............................................................37
REMIC Accrued Interest.............................................37
REMIC Administrator................................................38
REMIC Distributable Interest.......................................38
REMIC Principal Balance............................................40
REMIC Provisions...................................................40
REMIC I............................................................41
REMIC I Regular Interest...........................................41
REMIC I Remittance Rate............................................41
REMIC II...........................................................42
REMIC II Regular Interest..........................................42
REMIC II Remittance Rate...........................................42
REMIC III..........................................................42
REMIC III Component................................................42
v
<PAGE>
REMIC III Component Notional Amount................................42
REMIC III IO-2 Component...........................................42
REMIC III P&I Regular Interest.....................................43
REMIC III Regular Interest.........................................43
REMIC III Remittance Rate..........................................43
REMIC IV...........................................................43
REMIC IV Component.................................................43
REMIC IV Component Notional Amount.................................44
REMIC IV IO-2 Component............................................44
REMIC IV P&I Regular Interest......................................44
REMIC IV Regular Interest..........................................44
REMIC IV Remittance Rate...........................................44
Rents from Real Property...........................................45
REO Account........................................................45
REO Acquisition....................................................45
REO Disposition....................................................45
REO Extension......................................................45
REO Loan...........................................................45
REO Property.......................................................46
REO Revenues.......................................................46
REO Status Report..................................................46
REO Tax............................................................46
Request for Release................................................46
Required Appraisal.................................................47
Required Appraisal Mortgage Loan...................................47
Required Appraisal Value...........................................47
Reserve Account....................................................47
Reserve Funds......................................................47
Residual Certificate...............................................47
Responsible Officer................................................47
Restricted Servicer Reports........................................47
RVI Policy.........................................................48
RVI Policy Insurer.................................................48
Scheduled Payment..................................................48
Securities Act.....................................................48
Semi-Annual Loan Interest Advance Amount...........................48
Semi-Annual Loan Scheduled Interest Payment........................48
Semi-Annual Loan Swap Agreement....................................48
Semi-Annual Mortgage Loan..........................................48
Senior Certificate.................................................49
Sequential Pay Certificates........................................49
Servicing Account..................................................49
Servicing Advances.................................................49
Servicing Fees.....................................................49
Servicing File.....................................................50
vi
<PAGE>
Servicing Officer..................................................50
Servicing Standard.................................................50
Servicing Transfer Event...........................................50
Single Certificate.................................................50
Special Servicer...................................................50
Special Servicing Fee..............................................50
Special Servicing Fee Rate.........................................51
Specially Serviced Mortgage Loan...................................51
Standard & Poor's..................................................53
Startup Day........................................................53
State and Local Taxes..............................................53
Stated Maturity Date...............................................53
Stated Principal Balance...........................................53
Subordinated Certificate...........................................53
Sub-Servicer.......................................................54
Sub-Servicing Agreement............................................54
Substitution Shortfall Amount......................................54
Tax Matters Person.................................................54
Tax Returns........................................................54
Tenant.............................................................54
Transfer...........................................................54
Transferee.........................................................54
Transferor.........................................................54
Transition Date....................................................55
Transition Supplement..............................................55
Trust Fund.........................................................55
Trustee............................................................55
Trustee Fee........................................................55
Trustee Fee Rate...................................................55
Trustee Liability..................................................55
UCC................................................................55
UCC Financing Statement............................................55
Underwriter........................................................55
United States Person...............................................55
Unrestricted Servicer Reports......................................56
USAP...............................................................56
Voting Rights......................................................56
Watch List.........................................................56
Weighted Average REMIC I Remittance Rate...........................56
Yield Maintenance Charge...........................................56
vii
<PAGE>
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES...............................58
SECTION 2.01. Conveyance of Mortgage Loans................................58
SECTION 2.02. Acceptance of the Trust Fund by Trustee.....................59
SECTION 2.03. Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Document Defects and Breaches of
Representations and Warranties..........................60
SECTION 2.04. Representations and Warranties of Depositor.................62
SECTION 2.05. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests.....64
SECTION 2.06. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee.....................................64
SECTION 2.07. Execution, Authentication and Delivery of Class R-II
Certificates............................................64
SECTION 2.08. Conveyance of REMIC II Regular Interests; Acceptance of
REMIC III by Trustee....................................64
SECTION 2.09. Execution, Authentication and Delivery of Class R-III
Certificates............................................65
SECTION 2.10. Execution, Authentication and Delivery of Regular
Certificates............................................65
SECTION 2.11. Execution, Authentication and Delivery of REMIC IV
Regular Interests and Class R-IV Certificates...........65
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST FUND..................67
SECTION 3.01. Administration of the Mortgage Loans........................67
SECTION 3.02. Collection of Mortgage Loan Payments........................68
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts....................70
SECTION 3.04. Certificate Account, Interest Reserve Account and
Distribution Account....................................73
SECTION 3.05. Permitted Withdrawals From the Certificate Account,
Interest Reserve Account and the Distribution
Account.................................................76
SECTION 3.06. Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Certificate Account, the
Distribution Account and the REO Account................80
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage...................................82
SECTION 3.08. Enforcement of Alienation Clauses...........................85
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required
Appraisals..............................................86
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage
Files...................................................89
SECTION 3.11. Servicing Compensation......................................90
viii
<PAGE>
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.................93
SECTION 3.13. Annual Statement as to Compliance...........................96
SECTION 3.14. Reports by Independent Public Accountants...................96
SECTION 3.15. Access to Certain Information...............................97
SECTION 3.16. Title to REO Property; REO Account.........................100
SECTION 3.17. Management of REO Property.................................101
SECTION 3.18. Sale of Mortgage Loans and REO Properties..................104
SECTION 3.19. Additional Obligations of Master Servicer and Special
Servicer...............................................107
SECTION 3.20. Modifications, Waivers, Amendments and Consents............108
SECTION 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.......................113
SECTION 3.22. Sub-Servicing Agreements...................................116
SECTION 3.23. Representations and Warranties of Master Servicer and
Special Servicer.......................................118
SECTION 3.24. Sub-Servicing Agreement Representation and Warranty........121
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS..................................123
SECTION 4.01. Distributions..............................................123
SECTION 4.02. Statements to Certificateholders; CSSA Loan File Report....132
SECTION 4.03. P&I Advances...............................................138
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund
Expenses...............................................140
SECTION 4.05. Calculations...............................................142
SECTION 4.06. Use of Agents..............................................142
ARTICLE V THE CERTIFICATES.................................................142
SECTION 5.01. The Certificates...........................................143
SECTION 5.02. Registration of Transfer and Exchange of Certificates......143
SECTION 5.03. Book-Entry Certificates....................................149
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates..........151
SECTION 5.05. Persons Deemed Owners......................................151
ARTICLE VI THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE
CONTROLLING CLASS REPRESENTATIVE................................151
SECTION 6.01. Liability of Depositor, Master Servicer and Special
Servicer...............................................152
SECTION 6.02. Merger, Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer....................152
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer
and Special Servicer...................................153
SECTION 6.04. Resignation of Master Servicer and the Special Servicer....154
ix
<PAGE>
SECTION 6.05. Rights of Depositor and Trustee in Respect of Master
Servicer and the Special Servicer......................154
SECTION 6.06. Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee.................................155
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer...................................155
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate
with Special Servicer..................................155
SECTION 6.09. Designation of Special Servicer by the Controlling
Class..................................................155
SECTION 6.10. Master Servicer or Special Servicer as Owner of a
Certificate............................................156
SECTION 6.11. The Controlling Class Representative.......................157
ARTICLE VII DEFAULT........................................................159
SECTION 7.01. Events of Default..........................................159
SECTION 7.02. Trustee to Act; Appointment of Successor...................163
SECTION 7.03. Notification to Certificateholders.........................165
SECTION 7.04. Waiver of Events of Default................................165
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.......165
ARTICLE VIII CONCERNING THE TRUSTEE.......................................167
SECTION 8.01. Duties of Trustee..........................................167
SECTION 8.02. Certain Matters Affecting Trustee..........................168
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.........................169
SECTION 8.04. Trustee May Own Certificates...............................170
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of
Trustee................................................170
SECTION 8.06. Eligibility Requirements for Trustee.......................171
SECTION 8.07. Resignation and Removal of Trustee.........................172
SECTION 8.08. Successor Trustee..........................................173
SECTION 8.09. Merger or Consolidation of Trustee.........................173
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee..............174
SECTION 8.11. Appointment of Custodians..................................175
SECTION 8.12. Appointment of Authenticating Agents.......................175
SECTION 8.13. Appointment of Paying Agent................................176
SECTION 8.14. Appointment of REMIC Administrators........................177
SECTION 8.15. Access to Certain Information..............................178
SECTION 8.16. Representations, Warranties and Covenants of Trustee.......178
SECTION 8.17. Reports to the Securities and Exchange Commission;
Available Information......................................180
x
<PAGE>
ARTICLE IX TERMINATION.....................................................181
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans.........................................181
SECTION 9.02. Additional Termination Requirements....................... 186
ARTICLE X ADDITIONAL TAX PROVISIONS........................................188
SECTION 10.01. REMIC Administration......................................188
ARTICLE XI MISCELLANEOUS PROVISIONS....................................... 193
SECTION 11.01. Amendment.................................................193
SECTION 11.02. Recordation of Agreement; Counterparts....................194
SECTION 11.03. Limitation on Rights of Certificateholders................195
SECTION 11.04. Governing Law.............................................196
SECTION 11.05. Notices...................................................196
SECTION 11.06. Severability of Provisions................................197
SECTION 11.07. Grant of a Security Interest..............................197
SECTION 11.08. Streit Act................................................198
SECTION 11.09. Successors and Assigns; Beneficiaries.....................198
SECTION 11.10. Article and Section Headings..............................198
SECTION 11.11. Notices to Rating Agencies and Underwriters...............198
SECTION 11.12. Complete Agreement........................................200
xi
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS
Exhibit Description Exhibit No. Section Reference
- ------------------- ----------- -----------------
<S> <C> <C>
Form of Class A-1 Certificate A-1 Section 1.01 Definition of
"Class A-1 Certificate"
Form of Class A-2 Certificate A-2 Section 1.01 Definition of
"Class A-2 Certificate"
[Reserved] A-3
Form of Class IO-1 Certificate A-4 Section 1.01 Definition of
"Class IO-1 Certificate"
Form of Class B Certificate A-5 Section 1.01 Definition of
"Class B Certificate"
Form of Class C Certificate A-6 Section 1.01 Definition of
"Class C Certificate"
Form of Class D Certificate A-7 Section 1.01 Definition of
"Class D Certificate"
Form of Class E Certificate A-8 Section 1.01 Definition of
"Class E Certificate"
Form of Class IO-2 Certificate A-9 Section 1.01 Definition of
"Class IO-2 Certificate"
Form of Class F Certificate A-10 Section 1.01 Definition of
"Class F Certificate"
Form of Class G Certificate A-11 Section 1.01 Definition of
"Class G Certificate"
Form of Class H Certificate A-12 Section 1.01 Definition of
"Class H Certificate"
Form of Class R-I Certificate A-13 Section 1.01 Definition of
"Class R-I Certificate"
Form of Class R-II Certificate A-14 Section 1.01 Definition of
"Class R-II Certificate"
</TABLE>
xii
<PAGE>
<TABLE>
<CAPTION>
Exhibit Description Exhibit No. Section Reference
- ------------------- ----------- -----------------
<S> <C> <C>
Form of Class R-III Certificate A-15 Section 1.01 Definition of
"Class R-III Certificate"
Form of Class R-IV Certificate A-16 Section 1.01 Definition of
"Class R-IV Certificate"
Mortgage Loan Schedule B Section 1.01 Definition of
"Mortgage Loan Schedule"
Form of Schedule of Exceptions to C Section 2.02(a)
Mortgage File Delivery
Form of Master Servicer Request for D-1 Section 1.01 Definition of
Release "Request for Release";
Section 2.03(b); Section
3.10(a); and Section 3.10(b)
Form of Special Servicer Request for D-2 Section 1.01 Definition of
Release "Request for Release";
Section 3.10(b)
Calculation of NOI/Debt Service E Section 1.01 Definition of
Coverage Ratios "Net Operating Income";
Section 3.12(b)
Form of Transition Supplement F Section 2.10(a)
Form of Certificate from Holder G-1 Section 5.02(b)
(Transferor) of a Certificate to the
Certificate Registrar
Form of Certificate from Proposed G-2 Section 5.02(b)
Transferee of a Certificate to
Certificate Registrar
Form of Certificate from Proposed G-3 Section 5.02(b)
Transferee of a Certificate to
Certificate Registrar for non-QIBs
Form of Certificate (to Certificate H Section 5.02(c)
Registrar) by Prospective Transferor
that it is not a Plan or certain
other Persons
</TABLE>
xiii
<PAGE>
<TABLE>
<CAPTION>
Exhibit Description Exhibit No. Section Reference
- ------------------- ----------- -----------------
<S> <C> <C>
Form of Transfer Affidavit and I-1 Section 5.02(d)(i)(B)
Agreement regarding Class R-I
Certificates
Form of Transferor Certificate I-2 Section 5.02(d)(i)(D)
regarding Class R-I, R-II, R-III and
R-IV Certificates
Form of Notice and Acknowledgment J-1 Section 6.09
Form of Acknowledgment of Proposed J-2 Section 6.09
Special Servicer
Privileged Person Certificate K Section 3.15(b)
Form of Schedule of Holders of each L Section 4.02(a)
Class of Regular Certificates
Form of CSSA Property File Report M Section 3.12(c)
Form of Comparative Financial Status N Section 3.12(b) and 3.12(c)
Report
Form of REO Status Report O Section 3.12(b) and 3.12(c)
Form of Watch List P Section 3.12(b) and 3.12(c)
Form of Delinquent Loan Status Report Q Section 3.12(b) and 3.12(c)
Form of Historical Loan Modification R Section 3.12(b) and 3.12(c)
Report
Form of Historical Loss Estimate S Section 3.12(b) and 3.12(c)
Report
Form of NOI Adjustment Worksheet T Section 3.12(b) and 3.12(c)
Form of Operating Statement Analysis U Section 3.12(b) and 3.12(c)
</TABLE>
vix
<PAGE>
<TABLE>
<CAPTION>
Exhibit Description Exhibit No. Section Reference
- ------------------- ----------- -----------------
<S> <C> <C>
Form of Loan Payoff Notification V Section 3.12(b) and 3.12(c)
Report
Form of CSSA Loan File Report W Section 4.02(b)
Form of Certificateholder X-1 Section 3.15
Confirmation Certificate
Form of Prospective Purchaser X-2 Section 3.15
Certificate
</TABLE>
xv
<PAGE>
This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of December 1, 1998, among FIRST UNION COMMERCIAL MORTGAGE
SECURITIES, INC., as Depositor, FIRST UNION NATIONAL BANK, as Master Servicer,
LENNAR PARTNERS, INC., as Special Servicer, and NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in multiple classes
(each, a "Class"), which in the aggregate will evidence the entire beneficial
ownership interest in a trust fund (the "Trust Fund") to be created hereunder.
As provided herein, the Trustee will elect to treat the segregated pool of
assets consisting of the Mortgage Loans and certain other related assets subject
to this Agreement as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as "REMIC I". The Class R-I
Certificates will represent the sole class of "residual interests" in REMIC I
for purposes of the REMIC Provisions under federal income tax law. Each REMIC I
Regular Interest will relate to a specific Mortgage Loan and will be designated
as a separate "regular interest" in REMIC I for purposes of the REMIC Provisions
under federal income tax law. Each such REMIC I Regular Interest will (i) have a
REMIC I Remittance Rate that, subject to the adjustment provided herein, is
equal to the unmodified Net Mortgage Rate as of the Closing Date of the Mortgage
Loan to which such REMIC I Regular Interest relates, and (ii) have an initial
REMIC Principal Balance equal to the Cut-off Date Balance of the Mortgage Loan
to which such REMIC I Regular Interest relates. None of the REMIC I Regular
Interests will be certificated.
As provided herein, the Trustee will elect to treat the segregated pool of
assets consisting of the REMIC I Regular Interests as a REMIC for federal income
tax purposes, and such segregated pool of assets will be designated as "REMIC
II". The Class R-II Certificates will represent the sole class of "residual
interests" in REMIC II for purposes of the REMIC Provisions under federal income
tax law. Each of the nine REMIC II Regular Interests will be designated as a
separate "regular interest" in REMIC II for purposes of the REMIC Provisions
under federal income tax law and will have a REMIC II Remittance Rate equal to
the Weighted Average REMIC I Remittance Rate. The initial REMIC Principal
Balance of each such REMIC II Regular Interest is set forth in the Table below.
None of the REMIC II Regular Interests will be certificated.
REMIC II INITIAL REMIC
REGULAR INTEREST PRINCIPAL BALANCE
---------------- -----------------
A-1 $224,350,000
A-2 $608,949,000
B $58,273,000
C $61,186,000
D $67,014,000
<PAGE>
REMIC II INITIAL REMIC
REGULAR INTEREST PRINCIPAL BALANCE
---------------- -----------------
E $17,482,000
F $52,445,000
G $37,877,000
H $37,878,045
As provided herein, the Trustee will elect to treat the segregated pool of
assets consisting of the REMIC II Regular Interests as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
"REMIC III". The Class R-III Certificates will evidence the sole class of
"residual interests" in REMIC III for purposes of the REMIC Provisions under
federal income tax law. Each of the nine REMIC III P&I Regular Interests and
each of the four REMIC III Components will be designated as a separate "regular
interest" in REMIC III for purposes of the REMIC Provisions under federal income
tax law. Each REMIC III P&I Regular Interest will have (i) a REMIC Principal
Balance equal to the REMIC Principal Balance of the Corresponding REMIC II
Regular Interest as set forth in the Table below, and (ii) the REMIC III
Remittance Rate set forth in the Table below. Each REMIC III Component other
than the REMIC III IO-2 Component will have (i) a REMIC III Component Notional
Amount equal to the REMIC Principal Balance of the Corresponding REMIC II
Regular Interest as set forth in the Table below, and (ii) a REMIC III
Remittance Rate equal to any positive difference between (A) the Weighted
Average REMIC I Remittance Rate and (B) the sum of the REMIC III Remittance Rate
for the Corresponding REMIC III P&I Regular Interest as set forth in the Table
below and the Pass-Through Rate for the Class IO-2 Certificates. The REMIC III
IO-2 Component will have (i) a REMIC III Component Notional Amount equal to the
aggregate of the REMIC Principal Balances of REMIC II Regular Interests F, G and
H, and (ii) a REMIC III Remittance Rate equal to the Pass-Through Rate for the
Class I0-2 Certificates.
REMIC III CORRESPONDING
P&I REMIC II REMIC CORRESPONDING
REGULAR REGULAR III REMIC III
INTEREST INTEREST REMITTANCE RATE COMPONENT
--------- -------- --------------- ---------
A-1 A-1 Weighted Average None
REMIC I Remittance
Rate
A-2 A-2 " None
B B " None
C C " None
D D " None
E E " None
F F 5.35% IO-F
G G 5.35% IO-G
H H 5.35% IO-H
2
<PAGE>
From the Closing Date until immediately preceding the Transition Date (i)
each Class of Sequential Pay Certificates shall represent the particular REMIC
III P&I Regular Interest which has the same alphabetical (and, if applicable,
numerical) designation as such Class of Sequential Pay Certificates and shall
have a Class Principal Balance and a Pass-Through Rate that equal, respectively,
the REMIC Principal Balance and the REMIC III Remittance Rate of such REMIC III
P&I Regular Interest, (ii) the Class IO-1 Certificates shall represent the
aggregate of all of the REMIC III Components other than the REMIC III IO-2
Component and shall have a Class Notional Amount equal to the sum of the REMIC
III Component Notional Amounts of each of the REMIC III Components other than
the REMIC III IO-2 Component and a Pass-Through Rate equal to the percentage
obtained by dividing (A) the aggregate of the amounts obtained by applying the
REMIC III Remittance Rate for each such REMIC III Component to the REMIC III
Component Notional Amount of such REMIC III Component by (B) the aggregate of
the REMIC III Component Notional Amounts of such REMIC III Components, and (iii)
the Class I0-2 Certificates shall represent the REMIC III IO-2 Component and
shall have a Class Notional Amount equal to the REMIC III Component Notional
Amount of the REMIC III IO-2 Component and a Pass-Through Rate of 0.25%.
On the Transition Date, as provided herein, the Holders of the Regular
Certificates will be deemed to assign to the Trustee the respective REMIC III
Regular Interests which are then represented by such Regular Certificates and
the Trustee shall elect to treat the segregated pool of assets consisting of
such REMIC III Regular Interests as a REMIC for federal income tax purposes, and
such segregated pool of assets will be designated as "REMIC IV". The Class R-IV
Certificates will evidence the sole class of "residual interests" in REMIC IV
for purposes of the REMIC Provisions under federal income tax law. For federal
income tax purposes on and after the Transition Date (i) each Class of
Sequential Pay Certificates shall represent the particular REMIC IV P&I Regular
Interest which has the same alphabetical (and, if applicable, numerical)
designation as such Class of Sequential Pay Certificates and shall have a Class
Principal Balance and a Pass-Through Rate that equal, respectively, the REMIC
Principal Balance and the REMIC IV Remittance Rate of such REMIC IV P&I Regular
Interest, (ii) the Class IO-1 Certificates shall represent the aggregate of all
of the REMIC IV Components other than the REMIC IV IO-2 Component and shall have
a Class Notional Amount equal to the sum of the REMIC IV Component Notional
Amounts of each of the REMIC IV Components other than the REMIC IV IO-2
Component and a Pass-Through Rate equal to the percentage obtained by dividing
(A) the aggregate of the amounts obtained by applying the REMIC IV Remittance
Rate for each such REMIC IV Component to the REMIC IV Component Notional Amount
of such REMIC IV Component by (B) the aggregate of the REMIC IV Component
Notional Amounts of such REMIC IV Components, and (iii) the Class IO-2
Certificates shall represent the REMIC IV IO-2 Component and shall have a Class
Notional Amount equal to the REMIC IV Component Notional Amount of the REMIC IV
IO-2 Component and a Pass-Through Rate of 0.25%.
For federal income tax purposes on and after the Transition Date, each of
the nine REMIC IV P&I Regular Interests and each of the ten REMIC IV Components
will be designated as a separate "regular interest" in REMIC IV for purposes of
the REMIC provisions under federal income tax law. Each REMIC IV P&I Regular
Interest will have (i) a REMIC
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Principal Balance equal to the REMIC Principal Balance of the Corresponding
REMIC III P&I Regular Interest as set forth in the Table below, and (ii) with
respect to REMIC IV P&I Regular Interests F, G and H, the REMIC IV Remittance
Rate set forth in the Table below. The respective REMIC IV Remittance Rates for
REMIC IV P&I Regular Interests A-1, A-2, B, C, D and E shall be as set forth in
the Transition Supplement. Each REMIC IV Component other than the REMIC IV IO-2
Component will have (i) a REMIC IV Component Notional Amount equal to the REMIC
Principal Balance of the Corresponding REMIC III P&I Regular Interest as set
forth in the Table Below, and (ii) a REMIC IV Remittance rate equal to any
positive difference between (A) the Weighted Average REMIC I Remittance Rate and
(B) the REMIC IV Remittance Rate for the Corresponding REMIC IV P&I Regular
Interest as set forth in the Table below or in the Transition Supplement
increased, in the case of REMIC IV Components F, G and H, by the REMIC IV
Remittance Rate for the REMIC IV IO-2 Component. The REMIC IV IO-2 Component
will have (i) a REMIC IV Component Notional Amount equal to the aggregate of the
REMIC Principal Balances of REMIC III P & I Regular Interests F, G and H, and
(ii) a REMIC IV Remittance Rate of 0.25%.
REMIC IV CORRESPONDING
P&I REMIC III REMIC CORRESPONDING
REGULAR P&I REGULAR IV REMIC IV
INTEREST INTEREST REMITTANCE RATE COMPONENT
-------- -------- --------------- ---------
A-1 A-1 As Set Forth in the IO-A-1
Transition Supplement
A-2 A-2 " IO-A-2
B B " IO-B
C C " IO-C
D D " IO-D
E E " IO-E
F F 5.35% IO-F
G G 5.35% IO-G
H H 5.35% IO-H
In consideration of the mutual agreements herein contained, the Depositor,
the Master Servicer, the Special Servicer and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary Statement,
the following words and phrases, unless the context otherwise requires, shall
have the meanings specified in this Article.
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"30/360 Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"Accrued Certificate Interest": With respect to (i) any Class of Sequential
Pay Certificates for any Distribution Date, one month's interest at the
Pass-Through Rate applicable to such Class of Certificates for such Distribution
Date, accrued on the related Class Principal Balance outstanding immediately
prior to such Distribution Date, (ii) the Class IO-1 Certificates for any
Distribution Date, the sum of the Accrued Component Interest for all of its
Components for such Distribution Date, and (iii) the Class IO-2 Certificates for
any Distribution Date, the Accrued Component Interest for REMIC III Component
IO-2 or REMIC IV Component IO-2, as applicable. Accrued Certificate Interest
shall be calculated on a 30/360 Basis and, with respect to any Class of Regular
Certificates for any Distribution Date, shall be deemed to accrue during the
calendar month preceding the month in which such Distribution Date occurs.
"Accrued Component Interest": With respect to each Component for any
Distribution Date, one month's interest at the Pass-Through Rate applicable to
such Component for such Distribution Date, accrued on the Component Notional
Amount of such Component outstanding immediately prior to such Distribution
Date. Accrued Component Interest shall be calculated on a 30/360 Basis and, with
respect to any Component for any Distribution Date, shall be deemed to accrue
during the calendar month preceding the month in which such Distribution Date
occurs.
"Acquisition Date": With respect to any REO Property, the first day on
which such REO Property is considered to be acquired by the Trust Fund within
the meaning of Treasury Regulations Section 1.856-6(b)(1), which is the first
day on which the Trust Fund is treated as the owner of such REO Property for
federal income tax purposes.
"Actual/360 Basis": The accrual of interest calculated on the basis of the
actual number of days elapsed during any calendar month in a year assumed to
consist of 360 days. With respect to Mortgage Loan (control number 9821048) that
accrues interest only for a portion of its amortization term, such Mortgage Loan
shall only be an "Actual/360 Mortgage Loan" for such period that interest
actually accrues on an Actual/360 Basis.
"Actual/360 Mortgage Loan": Each Mortgage Loan that accrues interest on an
Actual/360 Basis and that is identified as an Actual/360 Mortgage Loan on the
Mortgage Loan Schedule. With respect to Mortgage Loan (control number 9821048)
that accrues interest only for a portion of its amortization term, such Mortgage
Loan shall only be an "Actual/360 Mortgage Loan" for such period that interest
actually accrues on an Actual/360 Basis.
"Additional Trust Fund Expense": Any Special Servicing Fees, Principal
Recovery Fees and, in accordance with Sections 3.03(d) and 4.03(d), interest
payable to the Master Servicer, the Special Servicer and the Trustee on
Advances, as well as (without duplication) any of the expenses of the Trust Fund
that may be withdrawn (x) pursuant to any of clauses (viii), (ix), (xi), (xii)
and (xiii) of Section 3.05(a) out of general collections on the Mortgage Loans
and any REO Properties on deposit in the Certificate Account or (y) pursuant
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to clause (ii) or any of clauses (iv) through (vi) of Section 3.05(b) out of
general collections on the Mortgage Loans and any REO Properties on deposit in
the Distribution Account; provided that for purposes of the allocations
contemplated by Section 4.04, no such expense shall be deemed to have been
incurred by the Trust Fund until such time as the payment thereof is actually
made from the Certificate Account or the Distribution Account, as the case may
be.
"Additional Yield Amount": With respect to any Distribution Date and each
Class of Sequential Pay Certificates (other than any Excluded Class thereof)
entitled to distributions of principal pursuant to Section 4.01(a) on such
Distribution Date, provided that a Prepayment Premium or Yield Maintenance
Charge was actually collected on a Mortgage Loan or an REO Loan during the
related Collection Period, the product of (a) such Prepayment Premium or Yield
Maintenance Charge, as the case may be, multiplied by (b) a fraction, which in
no event will be greater than one, the numerator of which is equal to the
positive excess, if any, of (i) the Pass-Through Rate for such Class of
Sequential Pay Certificates over (ii) the related Discount Rate, and the
denominator of which is equal to the positive excess, if any, of (i) the
Mortgage Rate for such Mortgage Loan or REO Loan, as the case may be, over (ii)
the related Discount Rate, multiplied by (c) a fraction, the numerator of which
is equal to the amount of principal distributable on such Class of Sequential
Pay Certificates on such Distribution Date pursuant to Section 4.01(a), and the
denominator of which is equal to the Principal Distribution Amount for such
Distribution Date.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(i).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all amendments hereof
and supplements hereto.
"Appraisal": With respect to any Mortgage Loan, an appraisal of the related
Mortgaged Property from an Independent Appraiser selected by the Special
Servicer or the Master Servicer, prepared in accordance with 12 CFR ss.225.62
and conducted in accordance with the standards of the Appraisal Institute.
"Appraisal Reduction Amount": The excess, if any, of (a) the sum of, as of
the Determination Date immediately succeeding the date on which a Required
Appraisal is obtained (without duplication), (i) the Stated Principal Balance of
the subject Required Appraisal Mortgage Loan, (ii) to the extent not previously
advanced by or on behalf of the Master Servicer or the Trustee, all unpaid
interest on the Required Appraisal Mortgage Loan through the most recent Due
Date prior to such Determination Date at a per annum rate equal
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to the related Net Mortgage Rate, (iii) all accrued but unpaid Servicing Fees
and Additional Trust Fund Expenses in respect of such Required Appraisal
Mortgage Loan, (iv) all related unreimbursed Advances (plus accrued interest
thereon) made by or on behalf of the Master Servicer, the Special Servicer or
the Trustee with respect to such Required Appraisal Mortgage Loan and (v) all
currently due and unpaid real estate taxes and unfunded improvement reserves (in
each case net of any amounts escrowed therefor) and assessments, insurance
premiums, and, if applicable, ground rents in respect of the related Mortgaged
Property over (b) the Required Appraisal Value.
"Appraised Value": With respect to each Mortgaged Property, the appraised
value thereof based upon the most recent appraisal or update thereof that is
contained in the related Servicing File.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor in connection with the origination of the related
Mortgage Loan.
"Assumed Scheduled 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
such Stated Maturity Date) and for any subsequent Due Date therefor as of which
such Mortgage Loan remains outstanding and 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 Scheduled Payment that would have been due in
respect of such Mortgage Loan on such Due Date if it had been required to
continue to pay principal in accordance with the amortization schedule, if any,
and to accrue interest at the Mortgage Rate, in effect on the Closing Date and
without regard to the occurrence of its Stated Maturity Date. 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 Scheduled Payment that would have been due in respect of the predecessor
Mortgage Loan on such Due Date had it remained outstanding (or, if the
predecessor Mortgage Loan was a Balloon Mortgage Loan and such Due Date
coincides with or follows what had been its Stated Maturity Date, the Assumed
Scheduled Payment that would have been deemed due in respect of the predecessor
Mortgage Loan on such Due Date had it remained outstanding).
"Authenticating Agent": Any authenticating agent appointed pursuant to
Section 8.12 (or, in the absence of any such appointment, the Trustee).
"Available Distribution Amount": With respect to any Distribution Date, an
amount equal to (a) the sum of, without duplication, (i) the aggregate of the
amounts on deposit in the Certificate Account and the Distribution Account as of
the close of business on the related Determination Date and the amounts
collected by or on behalf of the Master Servicer as of the close of business on
such Determination Date and required to be deposited in
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the Certificate Account, (ii) the aggregate amount of any P&I Advances made by
the Master Servicer or the Trustee for distribution on the Certificates on such
Distribution Date pursuant to Section 4.03, (iii) the aggregate amount
transferred from the REO Account (if established) to the Certificate Account
during the month of such Distribution Date, on or prior to the P&I Advance Date
in such month, pursuant to Section 3.16(c), (iv) the aggregate amount deposited
by the Master Servicer in the Distribution Account for such Distribution Date
pursuant to Section 3.19 in connection with Prepayment Interest Shortfalls, and
(v) for each Distribution Date occurring in March, the aggregate of the Interest
Reserve Amounts in respect of each Interest Reserve Loan deposited into the
Distribution Account pursuant to Section 3.05(c), net of (b) the portion of the
amount described in subclauses (a)(i) and (a)(iii) of this definition that
represents one or more of the following: (i) collected Periodic Payments that
are due on a Due Date following the end of the related Collection Period, (ii)
any amounts payable or reimbursable to any Person from (A) the Certificate
Account pursuant to clauses (ii)-(xiv) of Section 3.05(a) or (B) the
Distribution Account pursuant to clauses (ii) - (vi) of Section 3.05(b), (iii)
Prepayment Premiums and Yield Maintenance Charges, (iv) with respect to the
Distribution Date occurring during February of each year and during January of
each year that is not a leap year, the Interest Reserve Amounts with respect to
the Interest Reserve Loans to be withdrawn from the Certificate Account and
deposited in the Interest Reserve Account in respect of such Distribution Date
and held for future distribution pursuant to Section 3.04(c) and (v) any amounts
deposited in the Certificate Account or the Distribution Account in error.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original terms or by
virtue of any modification entered into as of the Closing Date provides for an
amortization schedule extending beyond its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of any date
of determination, the Scheduled Payment payable on the Stated Maturity Date of
such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time to
time (Title 11 of the United States Code).
"Bid Allocation": With respect to each Sub-Servicer and the proceeds of any
bid pursuant to Section 3.22(d), the amount of such proceeds (net of any
expenses incurred in connection with such bid and out of pocket expenses
incurred in connection with transferring the servicing of the Mortgage Loans)
multiplied by a fraction equal to (a) the Servicer Fee Amount for such
Sub-Servicer as of such date of determination, over (b) the aggregate of the
Servicer Fee Amounts for all of the Sub-Servicers as of such date of
determination. With respect to the Master Servicer and each Sub-Servicer and the
proceeds of any bid pursuant to Section 7.01(c), the amount of such proceeds
(net of any expenses incurred in connection with such bid and out of pocket
expenses incurred in connection with transferring the servicing of the Mortgage
Loans) multiplied by a fraction equal to (a) the Servicer Fee Amount for such
Sub-Servicer or the Master Servicer as the case may be as of such date of
determination, over (b) aggregate of the Servicer Fee Amounts for all of the
Sub-Servicers and the Master Servicer as of such date of determination.
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"Book-Entry Certificate": Any Certificate registered in the name of the
Depository or its nominee.
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a day on which
banking institutions in New York, New York, Columbia, Maryland, Minneapolis,
Minnesota, or the cities in which the Corporate Trust Office of the Trustee
(which as of the Closing Date is Columbia, Maryland) or the offices of the
Master Servicer (which as of the Closing Date, is Charlotte, North Carolina) 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 First Union Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, FUNB Series 1999-C1, as executed
by the Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"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 "First Union
National Bank, as Master Servicer for NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee, on behalf of and in trust for the registered holders of
First Union Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, FUNB Series 1999-C1".
"Certificate Factor": With respect to any Class of Sequential Pay
Certificates as of any date of determination, a fraction, expressed as a decimal
carried to eight places, the numerator of which is the then-current Class
Principal Balance of such Class of Sequential Pay Certificates and the
denominator of which is the Original Principal Balance of such Class of
Sequential Pay Certificates.
"Certificate Notional Amount": With respect to (i) any Class IO-1
Certificate, as of any date of determination, the then notional amount of such
Certificate equal to the product of (a) the Percentage Interest evidenced by
such Certificate, multiplied by (b) the then Class Notional Amount of the Class
IO-1 Certificates, and (ii) any Class IO-2 Certificate, as of any date of
determination, the then notional amount of such Certificate equal to the product
of (a) the Percentage Interest evidenced by such Certificate, multiplied by (b)
the then Class Notional Amount of the Class IO-2 Certificates.
"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.
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"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": The Person in whose name a Certificate is registered
in the Certificate Register, except that (i) neither a Disqualified Organization
nor a Non-United States Person shall be Holder of a Residual Certificate for any
purpose hereof and, (ii) solely for the purposes of giving any consent, approval
or waiver pursuant to this Agreement that relates to any of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, or the Trustee
in its respective capacity as such (except with respect to amendments referred
to in Sections 3.20(d) and 11.01 hereof and any consent, approval or waiver
required or permitted to be made by the Majority Subordinate Certificateholder
or the Controlling Class Representative and any election, removal or replacement
of the Special Servicer or the Controlling Class Representative pursuant to
Section 6.09), any Certificate registered in the name of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, or the Trustee,
as the case may be, or any Certificate registered in the name of any of its
Affiliates, shall be deemed not to be outstanding, and the Voting Rights to
which it is entitled shall not be taken into account in determining whether the
requisite percentage of Voting Rights necessary to effect any such consent,
approval or waiver that relates to it has been obtained. The Certificate
Registrar shall be entitled to request and rely upon a certificate of the
Depositor, the Master Servicer or the Special Servicer in determining whether a
Certificate is registered in the name of an Affiliate of such Person. All
references herein to "Holders" or "Certificateholders" shall reflect the rights
of Certificate Owners as they may indirectly exercise such rights through the
Depository and the Depository Participants, except as otherwise specified
herein; provided, however, that the parties hereto shall be required to
recognize as a "Holder" or "Certificateholder" only the Person in whose name a
Certificate is registered in the Certificate Register.
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Certificates": The Class A-1 and 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, prior to the Transition Date, evidencing a portion of REMIC
III P&I Regular Interest A-1 and, on and after the Transition Date, evidencing a
portion of REMIC IV P&I Regular Interest A-1 for purposes of the REMIC
Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class A-2"
designation on the face thereof substantially in the form of Exhibit A-2
attached hereto and, prior to the Transition Date, evidencing a portion of REMIC
III P&I Regular Interest A-2 and,
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on and after the Transition Date, evidencing a portion of REMIC IV P&I Regular
Interest A-2 for purposes of the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof substantially in the form of Exhibit A-5
attached hereto and, prior to the Transition Date, evidencing a portion of REMIC
III P&I Regular Interest B and, on and after the Transition Date, evidencing a
portion of REMIC IV P&I Regular Interest B for purposes of the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof substantially in the form of Exhibit A-6
attached hereto and, prior to the Transition Date, evidencing a portion of REMIC
III P&I Regular Interest C and, on and after the Transition Date, evidencing a
portion of REMIC IV P&I Regular Interest C for purposes of the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof substantially in the form of Exhibit A-7
attached hereto and, prior to the Transition Date, evidencing a portion of REMIC
III P&I Regular Interest D and, on and after the Transition Date, evidencing a
portion of REMIC IV P&I Regular Interest D for purposes of the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof substantially in the form of Exhibit A-8
attached hereto and, prior to the Transition Date, evidencing a portion of REMIC
III P&I Regular Interest E and, on and after the Transition Date, evidencing a
portion of REMIC IV P&I Regular Interest E for purposes of the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof substantially in the form of Exhibit A-10
attached hereto and, prior to the Transition Date, evidencing a portion of REMIC
III P&I Regular Interest F and, on and after the Transition Date, evidencing a
portion of REMIC IV P&I Regular Interest F for purposes of the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof substantially in the form of Exhibit A-11
attached hereto and, prior to the Transition Date, evidencing a portion of REMIC
III P&I Regular Interest G and, on and after the Transition Date, evidencing a
portion of REMIC IV P&I Regular Interest G for purposes of the REMIC Provisions.
"Class H Certificate": Any of the Certificates with a "Class H" designation
on the face thereof substantially in the form of Exhibit A-12 attached hereto
and, prior to the Transition Date, evidencing a portion of REMIC III P&I Regular
Interest H, and on and after the Transition Date, evidencing a portion of REMIC
IV P&I Regular Interest H for purposes of the REMIC Provisions.
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"Class IO-1 Certificate": Any one of the Certificates with a "Class IO-1"
designation on the face thereof substantially in the form of Exhibit A-4
attached hereto and, prior to the Transition Date, evidencing a portion of the
aggregate of all of the REMIC III Components other than the REMIC III IO-2
Component and, on and after the Transition Date, evidencing a portion of the
aggregate of all of the REMIC IV Components other than the REMIC IV IO-2
Component for purposes of the REMIC Provisions.
"Class IO-2 Certificate": Any one of the Certificates with a "Class IO-2"
designation on the face thereof substantially in the form of Exhibit A-9
attached hereto and, prior to the Transition Date, evidencing a portion of the
REMIC III IO-2 Component, and on and after the Transition Date, evidencing a
portion of the REMIC IV IO-2 Component.
"Class Notional Amount": As of any date of determination and with respect
to (i) the Class IO-1 Certificates prior to the Transition Date, the sum of the
then Component Notional Amounts of all of the REMIC III Components other than
the REMIC III IO-2 Component, (ii) the Class IO-1 Certificates on and after the
Transition Date, the sum of the then Component Notional Amounts of all of the
REMIC IV Components other than the REMIC IV IO-2 Component, (iii) the Class IO-2
Certificates prior to the Transition Date, the then Component Notional Amount of
the REMIC III IO-2 Component and (iv) the Class IO-2 Certificates on and after
the Transition Date, the then Component Notional Amount of the REMIC IV IO-2
Component.
"Class Principal Balance": The aggregate principal balance of any Class of
Sequential Pay Certificates outstanding from time to time. As of the Closing
Date, the Class Principal Balance of each Class of Sequential Pay Certificates
shall equal the Original Principal Balance thereof. On each Distribution Date,
the Class Principal Balance of each such Class of Certificates shall be reduced
by the amount of any distributions of principal made thereon on such
Distribution Date pursuant to Section 4.01 or 9.01, as applicable, and shall be
further reduced by the amount of any Realized Losses and Additional Trust Fund
Expenses allocated thereto on such Distribution Date pursuant to Section
4.04(a). Distributions in respect of a reimbursement of Realized Losses and
Additional Trust Fund Expenses previously allocated to a Class of Sequential Pay
Certificates shall not constitute distributions of principal and shall not
result in reduction of the related Class Principal Balance.
"Class R-I Certificate": Any one of the Certificates with a "Class R-I"
designation on the face thereof, substantially in the form of Exhibit A-13
attached hereto, and evidencing a portion of the sole class of "residual
interests" in REMIC I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class R-II"
designation on the face thereof, substantially in the form of Exhibit A-14
attached hereto, and evidencing a portion of the sole class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
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"Class R-III Certificate": Any one of the Certificates with a "Class R-III"
designation on the face thereof, substantially in the form of Exhibit A-15
attached hereto, and evidencing a portion of the sole class of "residual
interests" in REMIC III for purposes of the REMIC Provisions.
"Class R-IV Certificate": Any one of the Certificates with a "Class R-IV"
designation on the face thereof, substantially in the form of Exhibit A-16
attached hereto, and evidencing a portion of the sole class of "residual
interests" in REMIC IV for purposes of the REMIC Provisions.
"Closing Date": December 30, 1998.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date, the period
commencing on the day immediately following the Determination Date for the
preceding Distribution Date (or, in the case of the initial Distribution Date,
commencing immediately following the Cut-off Date) and ending on and including
the related Determination Date.
"Comparative Financial Status Report": A report substantially containing
the content described in Exhibit N attached hereto, setting forth, among other
things, the occupancy, revenue, net operating income and Debt Service Coverage
Ratio for each Mortgage Loan or the related Mortgaged Property, calculated as of
the last day of the calendar month immediately preceding the preparation of such
report, for (i) each of the three immediately preceding monthly periods (to the
extent such information is available), (ii) the most current available
year-to-date, (iii) the previous two full fiscal years stated separately, and
(iv) the "base year" (representing the original analysis of information used as
of the Cut-off Date). For the purposes of the Master Servicer's production of
any such report that is required to state information for any period prior to
the Cut-off Date, the Master Servicer may conclusively rely (without independent
verification), absent manifest error, on information provided to it by the
Mortgage Loan Seller, the related Mortgagor or the Special Servicer.
"Component": From the Closing Date until immediately preceding the
Transition Date, each of the REMIC III Components and, on and after the
Transition Date, each of the REMIC IV Components. All of the REMIC III
Components other than the REMIC III IO-2 Component shall be collectively
evidenced by the Class IO-1 Certificates from the Closing Date to immediately
preceding the Transition Date and all of the REMIC IV Components other than the
REMIC IV IO-2 Component shall be collectively evidenced by the Class IO-1
Certificates on and after the Transition Date. The Class IO-2 Certificates shall
evidence the REMIC III IO-2 Component from the Closing Date to immediately
preceding the Transition Date and shall evidence the REMIC IV IO-2 Component on
and after the Transition Date.
"Component Notional Amount": With respect to each Component, from the
Closing Date until immediately preceding the Transition Date, the related REMIC
III
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Component Notional Amount and, on and after the Transition Date, the related
REMIC IV Component Notional Amount.
"Controlling Class": As of any date of determination, the Class of
Sequential Pay Certificates, (a) which bears the latest alphabetical Class
designation and (b) the Class Principal Balance of which is greater than 25% of
the Original Principal Balance thereof; provided, however, that if no Class of
Sequential Pay Certificates has a Class Principal Balance greater than 25% of
its Original Principal Balance, the Controlling Class shall be the outstanding
Class of Certificates (other than the Residual Certificates or the Class IO-1
Certificates) bearing the latest alphabetical Class designation. With respect to
determining the Controlling Class, the Class A-1 Certificates and the Class A-2
Certificates shall be deemed a single Class of Certificates.
"Controlling Class Representative": As defined in Section 6.09.
"Corporate Trust Office": The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at (i) with respect to maintenance of the
Certificate Register and the transfer and exchange of Certificates, the office
of the Trustee located at Norwest Center, Sixth and Marquette, Minneapolis,
Minnesota 55479-0113, Attention: Corporate Trust Services (CMBS) -- First Union
Commercial Mortgage Trust, FUNB Series 1999-C1, and (ii) for all other purposes,
11000 Broken Land Parkway, Columbia, Maryland 21044-3562, Attn: Corporate Trust
Services (CMBS) -- First Union Commercial Mortgage Trust, FUNB Series 1999-C1.
"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".
"Corresponding": With respect to any REMIC II Regular Interest, REMIC III
P&I Regular Interest, REMIC III Component, REMIC IV P&I Regular Interest or
REMIC IV Component and any row in the Tables in the Preliminary Statement
hereto, the other REMIC II Regular Interest, REMIC III P&I Regular Interest,
REMIC III Component, REMIC IV P&I Regular Interest or REMIC IV Component in the
same row of such Table.
"Credit Lease": With respect to each Credit Lease Loan, the lease agreement
between the Mortgagor as lessor and the Tenant as lessee of the related
Mortgaged Property.
"Credit Lease Loan": Each Mortgage Loan that is identified as a "Credit
Lease Loan" on the Mortgage Loan Schedule.
"CSSA Loan File Report": The monthly report in the "CSSA loan file" format
substantially containing the information called for therein for the Mortgage
Loans, a form of which is attached hereto as Exhibit W.
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"CSSA Property File Report": The monthly report in the "CSSA property file"
format substantially containing the information called for therein for each
Mortgaged Property, a form of which is attached hereto as Exhibit M.
"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, Mortgage Loan Seller or an Affiliate of the
Depositor or Mortgage Loan Seller. If no such custodian has been appointed or if
such custodian has been so appointed, but the Trustee shall have terminated such
appointment, then the Trustee shall be the Custodian.
"Cut-off Date": For each Mortgage Loan with a Due Date that occurs on the
first of the month, December 1, 1998 and, for each other Mortgage Loan, the day
of the month in December 1998 on which the related Due Date for such Mortgage
Loan occurs.
"Cut-off Date Balance": With respect to any Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the Cut-off Date, after
application of all unscheduled payments of principal received on or before such
date and the principal component of all Periodic Payments due on or before such
date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan, as of any
date of determination, the ratio of (x) the annualized Net Operating Income
(before payment of any debt service on such Mortgage Loan) generated by the
related Mortgaged Property during the most recently ended period of not less
than six months and not more than twelve months for which financial statements,
if available (whether or not audited) have been received by or on behalf of the
Mortgage Loan Seller (prior to the Closing Date) or the Master Servicer or the
Special Servicer (following the Closing Date), to (y) twelve times the amount of
the Periodic Payment in effect for such Mortgage Loan as of such date of
determination.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent in an
amount equal to at least two Periodic Payments (not including the Balloon
Payment) or is delinquent thirty days or more in respect of its Balloon Payment,
in either case such delinquency to be determined without giving effect to any
grace period permitted by the related Mortgage or Mortgage Note and without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note, or (ii) as to which the Master Servicer or the Special Servicer has, by
written notice to the related Mortgagor, accelerated the maturity of the
indebtedness evidenced by the related Mortgage Note.
"Defeasance Collateral": With respect to any Defeasance Loan, the United
States Treasury obligations required or permitted to be pledged in lieu of
prepayment pursuant to the terms thereof.
"Defeasance Loan": Any Mortgage Loan identified as a Defeasance Loan on the
Mortgage Loan Schedule which requires the related Mortgagor (or permits the
holder of such Mortgage Loan to require the related Mortgagor) to pledge
Defeasance Collateral to such holder in lieu of prepayment.
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"Definitive Certificate": As defined in Section 5.03(a).
"Delinquent Loan Status Report": A report substantially containing the
content described in Exhibit Q attached hereto, 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, were
delinquent 30-59 days, delinquent 60-89 days, delinquent 90 days or more,
current but constituted Specially Serviced Mortgage Loans, or were in
foreclosure but were not REO Property.
"Depositor": First Union Commercial Mortgage Securities, Inc. or its
successor in interest.
"Depository": The Depository Trust Company, or any successor Depository
hereafter named as contemplated by Section 5.03(c). The nominee of the initial
Depository for purposes of registering those Certificates that are to be
Book-Entry Certificates, is Cede & Co. The Depository shall at all times be a
"clearing corporation" as defined in Section 8-102(3) of the Uniform Commercial
Code of the State of New York and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Securities Exchange Act of 1934, as amended.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to any Distribution Date, the 11th day
of the month in which such Distribution Date occurs, or if such 11th day is not
a Business Day, the Business Day immediately preceding.
"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 or lease,
the performance of any construction work thereon or any use of such REO Property
in a trade or business conducted by REMIC I other than through an Independent
Contractor; provided, however, that the Trustee (or the Special Servicer or any
Sub-Servicer on behalf of the Trustee) shall not be considered to Directly
Operate an REO Property solely because the Trustee (or the Special Servicer or
any Sub-Servicer on behalf of the Trustee) establishes rental terms, chooses
tenants, enters into or renews leases, deals with taxes and insurance, or makes
decisions as to repairs or capital expenditures with respect to such REO
Property.
"Discount Rate": With respect to any prepaid Mortgage Loan or REO Loan for
purposes of allocating any Prepayment Premium or Yield Maintenance Charge
received thereon or with respect thereto among the respective Classes of the
Sequential Pay Certificates (other than any Excluded Class thereof), an amount
equal to the yield (when compounded monthly) on the U.S. Treasury issue (primary
issue) with a maturity date closest to the maturity date for such prepaid
Mortgage Loan or REO Loan. In the event there are two such U.S. Treasury issues
(a) with the same coupon, the issue with the lower yield shall apply, and
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(b) with maturity dates equally close to the maturity date for the prepaid
Mortgage Loan or REO Loan, the issue with the earliest maturity date shall
apply.
"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 FHLMC, 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 Trustee or the Certificate Registrar 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.
"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 the product of (i) any Net Aggregate Prepayment Interest
Shortfall for such Distribution Date, multiplied by (ii) a fraction, expressed
as a decimal, the numerator of which is the Accrued Certificate Interest in
respect of such Class of Certificates for such Distribution Date, and the
denominator of which is the aggregate Accrued Certificate Interest in respect of
all the Classes of Regular Certificates for such Distribution Date.
"Distribution Account": The segregated account or accounts created and
maintained by the Paying Agent on behalf of the Trustee pursuant to Section
3.04(b) which shall be entitled "NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee, in trust for the registered holders of First Union Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, FUNB Series
1999-C1".
"Distribution Date": The 15th day of any month, or if such 15th day is not
a Business Day, the Business Day immediately following, commencing on January
15, 1999; provided, however, that the Distribution Date will be no earlier than
the fourth Business Day following the Determination Date in the month in which
such Distribution Date occurs.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.03(a).
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"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 Periodic 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 Periodic 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 Periodic
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, and with respect to
deposits held for 30 days or more in such account the (a) long-term deposit or
unsecured debt obligations of which are rated "A+" by Standard & Poor's and "A2"
by Moody's (if then rated by Moody's) (or, with respect to any such Rating
Agency, such lower rating as will not result in qualification, downgrading or
withdrawal of the ratings then assigned to the Certificates, as evidenced in
writing by the applicable Rating Agency), at any time such funds are on deposit
therein, or with respect to deposits held for less than 30 days in such account
the (b) short-term deposits of which are rated P-1 by Moody's (if then rated by
Moody's) and A-1 by Standard & Poor's (or, with respect to any such Rating
Agency, such lower rating as will not result in qualification, downgrading or
withdrawal of the ratings then assigned to the Certificates) as evidenced in
writing by the applicable Rating Agency at any time such funds are on deposit
therein, or (ii) a segregated trust account or accounts maintained with a
federal or state chartered depository institution or trust company acting in its
fiduciary capacity, which, in the case of a state chartered depository
institution or trust company, is subject to regulations regarding fiduciary
funds on deposit therein substantially similar to 12 CFR ss. 9.10(b), having in
either case a combined capital and surplus of at least $50,000,000 and subject
to supervision or examination by federal or state authority, or the use of such
account would not, in and of itself, cause a qualification, downgrading or
withdrawal of the then-current rating assigned to any Class of Certificates, as
confirmed in writing by each Rating Agency.
"Environmental Assessment": A "Phase I assessment" as described in, and
meeting the criteria of, (a) for each Mortgage Loan that is secured by a
multifamily Mortgaged Property, Chapter 5 of the FNMA Multifamily Guide or any
successor provisions covering the same subject matter, and (b) for each other
Mortgage Loan, the American Society for Testing and Materials for each other
Mortgaged Property.
"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, ground rents (if
applicable) and other items for which an escrow or reserve has been created in
respect of the related Mortgaged Property.
"Event of Default": One or more of the events described in Section 7.01(a).
"Exchange Act": Securities Exchange Act of 1934, as amended.
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"Excluded Class": Any Class of Sequential Pay Certificates other than the
Class A-1 Certificates, Class A-2 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates and Class E Certificates.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Recovery Determination": A determination by the Special Servicer
with respect to any Defaulted Mortgage Loan or REO Property (other than a
Mortgage Loan or REO Property, as the case may be, that was purchased by the
Mortgage Loan Seller pursuant to the Mortgage Loan Purchase Agreement, by the
Majority Subordinate Certificateholder pursuant to Section 3.18(b), by the
Master Servicer or the Special Servicer pursuant to Section 3.18(c) or by the
Depositor, the Master Servicer, the Special Servicer, an Underwriter or the
Majority Subordinate Certificateholder pursuant to Section 9.01) that there has
been a recovery of all Insurance Proceeds, Liquidation Proceeds and other
payments or recoveries that the Special Servicer has determined, in accordance
with the Servicing Standard, will be ultimately recoverable.
"First Union Capital": First Union Capital Markets, a division of Wheat
First Securities, Inc. or its successor in interest.
"FNMA": Federal National Mortgage Association or any successor.
"Grace Mortgage Loan": Each Mortgage Loan with a grace period that extends
beyond the P&I Advance Date pursuant to the terms of the related Mortgage Note
and identified as a Grace Mortgage Loan on the Mortgage Loan Schedule.
"Ground Lease": With respect to any Mortgage Loan for which the Mortgagor
has a leasehold interest in the related Mortgaged Property or space lease within
such Mortgaged Property, the lease agreement creating such leasehold interest.
"Guaranty": With respect to a Credit Lease Loan, a guaranty agreement
executed by an affiliate of the related Tenant that guarantees the Tenant's
obligations under the related Credit Lease.
"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 now existing or hereafter enacted, and specifically
including, without limitation, asbestos and asbestos-containing materials,
polychlorinated biphenyls ("PCBs"), radon gas, petroleum and petroleum products
and urea formaldehyde.
"Historical Loan Modification Report": A report substantially containing
the information described in Exhibit R attached hereto, setting forth, among
other things, those Mortgage Loans which, as of the close of business on the
Determination Date immediately
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preceding the preparation of such report, have been modified pursuant to this
Agreement (i) during the related Collection Period and (ii) since the Cut-off
Date, showing the original and the revised terms thereof.
"Historical Loss Estimate Report": A report substantially containing the
information described in Exhibit S attached hereto, setting forth, among other
things, as of the close of business on the Determination Date immediately
preceding the preparation of such report, (i) the aggregate amount of
Liquidation Proceeds and expenses relating to each Final Recovery Determination
made, both during the related Collection Period and historically, and (ii) the
amount of Realized Losses occurring during the related Collection Period, set
forth on a Mortgage Loan-by-Mortgage Loan basis.
"Holder": A Certificateholder.
"HUD-Approved Servicer": A servicer approved by the Secretary of Housing
and Urban Development pursuant to Section 207 of the National Housing Act.
"Impound Reserve": As defined in Section 3.16(c) hereof.
"Independent": When used with respect to any specified Person, any such
Person who (i) is in fact independent of the Depositor, the Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Controlling Class
Representative, the Trustee and any and all Affiliates thereof, (ii) does not
have any direct financial interest in or any material indirect financial
interest in any of the Depositor, the Master Servicer, the Special Servicer, the
Controlling Class Representative, the Trustee, the Mortgage Loan Seller or any
Affiliate thereof, and (iii) is not connected with the Depositor, the Master
Servicer, the Controlling Class Representative, the Special Servicer, the
Trustee, the Mortgage Loan Seller or any Affiliate thereof as an officer,
employee, promoter, underwriter, trustee, partner, director or Person performing
similar functions; provided, however, that a Person shall not fail to be
Independent of the Depositor, the Master Servicer, the Controlling Class
Representative, the Special Servicer, the Trustee, the Mortgage Loan Seller or
any Affiliate thereof merely because such Person is the beneficial owner of 1%
or less of any class of securities issued by the Depositor, the Master Servicer,
the Special Servicer, the Controlling Class Representative, the Trustee, such
Mortgage Loan Seller or any Affiliate thereof, as the case may be.
"Independent Appraiser": An Independent professional real estate appraiser
who is a member in good standing of the Appraisal Institute, and, if the State
in which the subject Mortgaged Property is located certifies or licenses
appraisers, certified or licensed in such State, and in each such case, who has
a minimum of five years experience in the subject property type and market.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by 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
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as is set forth in an Opinion of Counsel, which shall be at no expense to the
Master Servicer, the Special Servicer, the Trustee or the Trust Fund, delivered
to the Trustee), so long as REMIC I does not receive or derive any income from
such Person and provided that the relationship between such Person and REMIC I
is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5), or any other Person upon receipt by the Trustee of an Opinion of
Counsel, which shall be at no expense to the Master Servicer, the Special
Servicer, the Trustee or the Trust Fund, to the effect that the taking of any
action in respect of any REO Property by such Person, subject to any conditions
therein specified, that is otherwise herein contemplated to be taken by an
Independent Contractor will not cause such REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code, or
cause any income realized in respect of such REO Property to fail to qualify as
Rents from Real Property.
"Insured Balloon Loan": Each Balloon Mortgage Loan that is insured by an
RVI Policy and identified as an Insured Balloon Loan on the Mortgage Loan
Schedule.
"Insured Event": With respect to a Lease Enhancement Policy and an RVI
Policy, any occurrence, condition or event that gives rise or with the passage
of time will give rise to a claim under the Lease Enhancement Policy or RVI
Policy, as the case may be.
"Insurance Policy": With respect to any Mortgage Loan, any hazard insurance
policy, flood insurance policy, title policy or other insurance policy that is
maintained from time to time in respect of such Mortgage Loan or the related
Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to the
extent such proceeds are not applied to (a) the restoration of the related
Mortgaged Property, or (b) released to the Mortgagor, or any tenants or ground
lessors, as the case may be, pursuant to the terms of the related Mortgage or
lease, in accordance with the Servicing Standard.
"Interest Reserve Account": The segregated account created and maintained
by the Master Servicer pursuant to Section 3.04(c) on behalf of the Trustee in
trust for Certificateholders, which shall be entitled "First Union National
Bank, as Master Servicer for NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as
Trustee, on behalf of and in trust for the registered holders of First Union
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, FUNB
Series 1999-C1".
"Interest Reserve Amount": With respect to each Interest Reserve Loan and
each Distribution Date that occurs during February of each year and during
January of each year that is not a leap year, an amount equal to one day's
interest on the related Stated Principal Balance as of the Due Date in the month
in which such Distribution Date occurs (but prior to the application of any
amounts owed on such Due Date), to the extent a Periodic Payment or P&I Advance
is made in respect thereof for such Due Date as of the related P&I Advance Date.
"Interest Reserve Loan": Each Mortgage Loan that is an Actual/360 Mortgage
Loan.
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"Interested Person": The Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer, any Holder of a Certificate, or any Affiliate of
any such Person.
"Internet Website": The Internet Websites maintained by the Trustee and, if
applicable, the Master Servicer initially located at "www.ctslink.com/cmbs" and
"www.firstunion.com", respectively, or such other address as provided to the
parties hereto from time to time.
"Investment Account": As defined in Section 3.06(a).
"Issue Price": With respect to each Class of Certificates, the "issue
price" as defined in the Code and Treasury regulations promulgated thereunder.
"Late Collections": With respect to any Mortgage Loan, all amounts received
thereon during any Collection Period, other than Penalty Interest, whether as
payments, Insurance Proceeds, Liquidation Proceeds or otherwise, which represent
late collections of the principal and/or interest portions of a Scheduled
Payment (other than a Balloon Payment) or an Assumed Scheduled Payment in
respect of such Mortgage Loan due or deemed due on a Due Date in a previous
Collection Period and not previously 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 Scheduled Payment (other than a Balloon Payment) or an
Assumed Scheduled Payment in respect of the predecessor Mortgage Loan or of an
Assumed Scheduled Payment in respect of such REO Loan due or deemed due on a Due
Date in a previous Collection Period and not previously recovered.
"Lease Enhancement Policy": With respect to a Credit Lease Loan, any credit
lease enhancement insurance policy that insures against certain losses arising
out of casualty and/or condemnation of the related Mortgaged Property.
"Lease Enhancement Policy Insurer": With respect to any Lease Enhancement
Policy, Chubb Custom Insurance Company together with any assignee, successor or
subsequent insurer thereunder.
"Legal Final Distribution Date": With respect to each of the REMIC I
Regular Interests, REMIC II Regular Interests, REMIC III Regular Interests,
REMIC IV Regular Interests and each of the Regular Certificates, October 15,
2035.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the Mortgage Loan Seller pursuant to the Mortgage Loan
Purchase Agreement; or (iv) such Mortgage Loan is purchased by the Majority
Subordinate Certificateholder pursuant to Section 3.18(b), by the Master
Servicer or the Special Servicer pursuant to Section 3.18(c) or by the
Depositor, the Master Servicer, the Special Servicer or the Majority Subordinate
Certificateholder pursuant to Section 9.01. With respect to any REO Property
(and the related REO Loan), any of the following events:
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(i) a Final Recovery Determination is made with respect to such REO Property; or
(ii) such REO Property is purchased by the Depositor, the Master Servicer, the
Special Servicer or the Majority Subordinate Certificateholder pursuant to
Section 9.01.
"Liquidation Proceeds": All cash amounts (other than Insurance Proceeds and
REO Revenues) received by the Master Servicer or the Special Servicer in
connection with: (i) the taking of all or a part of a Mortgaged Property or REO
Property by exercise of the power of eminent domain or condemnation, subject,
however, to the rights of any tenants and ground lessors, as the case may be,
and the terms of the related Mortgage; (ii) the liquidation of a Mortgaged
Property or other collateral constituting security for a defaulted Mortgage
Loan, through trustee's sale, foreclosure sale, REO Disposition or otherwise,
exclusive of any portion thereof required to be released to the related
Mortgagor in accordance with applicable law and the terms and conditions of the
related Mortgage Note and Mortgage; (iii) the realization upon any deficiency
judgment obtained against a Mortgagor; (iv) the purchase of a Defaulted Mortgage
Loan by the Majority Subordinate Certificateholder 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 Mortgage Loan Seller pursuant to the Mortgage Loan Purchase
Agreement; or (vi) the purchase of a Mortgage Loan or REO Property by the
Depositor, the Master Servicer, the Special Servicer or the Majority Subordinate
Certificateholder pursuant to Section 9.01.
"Loan Payoff Notification Report": A report substantially containing the
information described in Exhibit V attached hereto, and setting forth for each
Mortgage Loan where notice of anticipated payoff has been received as of the
Determination Date immediately preceding the preparation of such report, among
other things, the control number, the property name, the amount of principal
expected to be paid, the expected date of payment and the estimated amount of
Yield Maintenance Charge or Prepayment Premium due.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of any date of
determination, a fraction, expressed as a percentage, the numerator of which is
the then current principal amount of such Mortgage Loan, and the denominator of
which is the Appraised Value of the related Mortgaged Property.
"Lockout Period": With respect to any Mortgage Note that prohibits the
Mortgagor from prepaying such Mortgage Loan until a date specified in such
Mortgage Note, the period from the Closing Date until the such specified date.
"Majority Subordinate Certificateholder": As of any date of determination,
any single Holder of Certificates entitled to greater than 50% of the Voting
Rights allocated to the Controlling Class; provided, however, that if there is
no single Holder of Certificates entitled to greater than 50% of the Voting
Rights allocated to such Class, then the Majority Subordinate Certificateholder
shall be the single Holder of Certificates with the largest percentage of Voting
Rights allocated to such Class. With respect to determining the Majority
Subordinate Certificateholder, the Class A-1 Certificates and the Class A-2
Certificates shall be deemed to be a single Class of Certificates, with such
Voting Rights allocated among the Holders of Certificates of
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such Classes in proportion to the respective Certificate Principal Balances of
such Certificates as of such date of determination.
"Master Servicer": First Union National Bank, its successor in interest
(including the Trustee as successor pursuant to Section 7.02), or any successor
master servicer appointed as herein provided.
"Master Servicing Fee": With respect to each Mortgage Loan and REO Loan,
the fee payable to the Master Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage Loan, the
percentage set forth under the column "Master Servicing Fee Rate" on the
Mortgage Loan Schedule that corresponds to such Mortgage Loan.
"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 and the Special
Servicer, 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, the mortgage, deed of trust,
deed to secure debt or similar instrument that secures the Mortgage Note and
creates a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, collectively the
following documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof (or a lost note
affidavit and indemnity with a copy of such Mortgage Note attached
thereto), together with any and all intervening endorsements
thereon, endorsed (without recourse, representation or warranty,
express or implied) to the order of NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as trustee for the registered holders of
First Union Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, FUNB Series 1999-C1 or in blank;
(ii) an original or copy of the Mortgage, together with any and all
intervening assignments thereof, in each case with evidence of
recording indicated thereon;
(iii) an original or copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage), together with any
and all
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intervening assignments thereof, in each case with evidence of
recording indicated thereon;
(iv) an original executed assignment, in recordable form, of (a) the
Mortgage, (b) any related Assignment of Leases (if such item is a
document separate from the Mortgage) and (c) any other recorded
document relating to the Mortgage Loan otherwise included in the
Mortgage File, in favor of NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as trustee for the registered holders of First Union
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, FUNB Series 1999-C1;
(v) an original assignment of all unrecorded documents relating to the
Mortgage Loan, in favor of NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as trustee for the registered holders of First Union
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, FUNB Series 1999-C1;
(vi) originals or copies of any written modification agreements in
those instances where the terms or provisions of the Mortgage or
Mortgage Note have been modified;
(vii) the original or a copy of the policy or certificate of lender's
title insurance or, if such policy has not been issued, an
original or copy of an irrevocable, binding commitment to issue
such title insurance policy; and
(viii) any filed copies (with evidence of filing) of any prior UCC
Financing Statements in favor of the originator of such Mortgage
Loan or in favor of any assignee prior to the Trustee (but only to
the extent the Mortgage Loan Seller had possession of such UCC
Financing Statements prior to the Closing Date) and, if there is
an effective UCC Financing Statement in favor of the Mortgage Loan
Seller on record with the applicable public office for UCC
Financing Statements, an original UCC-2 or UCC-3 assignment, as
appropriate, in form suitable for filing, as appropriate, in favor
of NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as trustee for
the registered holders of First Union Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, FUNB Series
1999-C1; and
(ix) an original or copy of any Ground Lease, any Credit Lease and any
Lease Enhancement Policy, RVI Policy or Guaranty.
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or the Custodian for documents described in clause
(vi) of
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this definition, shall be deemed to include only such documents to the extent
the Trustee or Custodian has actual knowledge of their existence.
"Mortgage Loan": Each of the mortgage loans listed on the Mortgage Loan
Schedule and from time to time held in the Trust Fund. As used herein, the term
"Mortgage Loan" includes the related Mortgage Note, Mortgage, any Lease
Enhancement Policy, any RVI Policy and other security documents contained in the
related Mortgage File.
"Mortgage Loan Purchase Agreement": That certain Mortgage Loan Purchase
Agreement, dated as of December 1, 1998, between the Depositor and the Mortgage
Loan Seller and relating to the transfer of the related Mortgage Loans to the
Depositor.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on the
Closing Date to the Trustee as part of REMIC I, attached hereto as Exhibit B and
in a computer readable format. Such list shall set forth the following
information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code) and name
of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Periodic Payment due on the first Due Date
following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) remaining term to stated maturity and (B) the Stated
Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) whether the Mortgage Loan is secured by a Ground Lease;
(ix) the Master Servicing Fee Rate;
(x) whether the Mortgage Loan is an Actual-360 Mortgage Loan;
(xi) the Mortgage Loan Seller;
(xii) whether the Mortgage Loan is a Credit Lease Loan and if so, the
related Tenant or guarantor of such Credit Lease Loan;
(xiii) whether such Mortgage Loan is insured by a Lease Enhancement
Policy or RVI Policy;
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(xiv) the debt service coverage ratio and loan to value ratio
(calculated in each case as set forth in the Private Placement
Memorandum);
(xv) whether such Mortgage Loan is cross-defaulted with any other
Mortgage Loan;
(xvi) whether such Mortgage Loan is a Defeasance Loan, Semi-Annual
Mortgage Loan, Grace Mortgage Loan or Insured Balloon Loan;
(xvii) whether the Mortgage Loan is secured by a letter of credit;
(xviii) whether such Mortgage Loan is an Interest Reserve Loan;
(xix) whether payments on such Mortgage Loan are made to a lock-box;
and
(xx) the amount of any Reserve Funds escrowed in respect of each
Mortgage Loan.
"Mortgage Loan Seller": First Union National Bank or its successor in
interest.
"Mortgage Note": The original executed note evidencing the indebtedness of
a Mortgagor under a Mortgage Loan, together with any rider, addendum or
amendment thereto, or any renewal, substitution or replacement of such note.
"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 fixed annualized rate, at which interest is scheduled
(in the absence of a default) to accrue on such Mortgage Loan from time to time
in accordance with the related Mortgage Note and applicable law; (ii) any
Mortgage Loan after its Stated Maturity Date or the annualized rate described in
clause (i) above determined without regard to the passage of such Stated
Maturity Date, but giving effect to any modification thereof as contemplated by
Section 3.20; and (iii) any REO Loan, the annualized rate described in clause
(i) or (ii), as applicable, above determined as if the predecessor Mortgage Loan
had remained outstanding.
"Mortgaged Property": The property subject to the lien of a Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including without
limitation, any Person that has acquired the related Mortgaged Property and
assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the sum of (i) the aggregate amount deposited by the Master
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Servicer in the Certificate Account for such Distribution Date pursuant to
Section 3.19(a) in connection with such Prepayment Interest Shortfalls and (ii)
the aggregate of all Prepayment Interest Excesses collected in connection with
the receipt of Principal Prepayments on the Mortgage Loans during the related
Collection Period.
"Net Investment Earnings": With respect to the Certificate Account, the
Interest Reserve Account, any Servicing Account, any Reserve Account, the
Distribution Account or the REO Account (if any) 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 account, exceeds the
aggregate of all losses, 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 the Certificate Account, the
Interest Reserve Account, any Servicing Account, any Reserve Account, the
Distribution Account or the REO Account (if any) for any Collection Period, the
amount by which the aggregate of all losses, if any, incurred during such
Collection Period in connection with the investment of funds held in such
account in accordance with Section 3.06, exceeds the aggregate of all interest
and other income realized during such Collection Period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or any REO Loan, as
of any date of determination, a rate per annum equal to the related Mortgage
Rate minus the sum of the Trustee Fee Rate and the applicable Master Servicing
Fee Rate.
"Net Operating Income or NOI": As defined in and determined in accordance
with the provisions of Exhibit E attached hereto.
"New Lease": Any lease of REO Property entered into on behalf of REMIC I,
including any lease renewed, modified or extended on behalf of REMIC I if REMIC
I has the right to renegotiate the terms of such lease.
"NOI Adjustment Worksheet": A report prepared by the Special Servicer with
respect to each Specially Serviced Mortgage Loan and REO Loan and by the Master
Servicer with respect to each other Mortgage Loan substantially containing the
content described in Exhibit T attached hereto, presenting the computations made
in accordance with the methodology described in Exhibit T to "normalize" the
full year net operating income and debt service coverage numbers used in the
other reports required by this Agreement.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or Nonrecoverable
Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or proposed
to be made in respect of any Mortgage Loan or REO Loan by the Master Servicer or
Trustee, as the case may be, that, as determined by the Master Servicer or the
Trustee as the case may be in accordance with the Servicing Standard with
respect to such P&I Advance will not be ultimately recoverable from late
payments, Insurance Proceeds or Liquidation Proceeds, or any other recovery on
or in respect of such Mortgage Loan or REO Loan.
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"Nonrecoverable Servicing Advance": Any Servicing Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Loan by the Master
Servicer or Trustee, as the case may be, that, as determined by the Master
Servicer, the Special Servicer or the Trustee in accordance with the Servicing
Standard, will not be ultimately recoverable from late payments, Insurance
Proceeds, Liquidation Proceeds, or any other recovery on or in respect of such
Mortgage Loan or REO Property.
"Non-Registered Certificate": Any Class of Certificates unless and until
such Class of Certificates is registered under the Securities Act.
"Non-United States Person": Any Person other than a United States Person.
"Officers' Certificate": A certificate signed by a Servicing Officer of the
Master Servicer or the Special Servicer, as the case may be, or by a Responsible
Officer of the Trustee.
"Operating Statement Analysis": With respect to each Mortgage Loan and REO
Mortgaged Property, a report prepared by the Special Servicer with respect to
each Specially Serviced Mortgage Loan and REO Loan and by the Master Servicer
with respect to each other Mortgage Loan substantially containing the content
described in Exhibit U attached hereto.
"Opinion of Counsel": A written opinion of counsel (which counsel shall be
Independent of the Depositor, the Master Servicer and the Special Servicer)
acceptable to and delivered to the Trustee or the Master Servicer, as the case
may be.
"Original Notional Amount": With respect to (i) the Class IO-1 Certificates
from the Closing Date until immediately preceding the Transition Date,
$128,200,045, (ii) the Class IO-1 Certificates on and after the Transition Date,
the aggregate of the REMIC IV Component Notional Amounts of all of the REMIC IV
Components other than the REMIC IV IO-2 Component as of the Transition Date and
(iii) the Class IO-2 Certificates, $128,200,045.
"Original Principal Balance": With respect to any Class of Sequential Pay
Certificates, the initial Class Principal Balance thereof as of the Closing
Date, in each case as specified in the Preliminary Statement hereto.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial, as owner or as
pledgee.
"Pass-Through Rate": For the period from the Closing Date to immediately
preceding the Transition Date and with respect to (i) each Class of Sequential
Pay Certificates, the REMIC III Remittance Rate applicable to the REMIC III P&I
Regular Interest which has the same alphabetical (and, if applicable, numerical)
designation as such Class of Sequential Pay Certificates and (ii) each REMIC III
Component, the REMIC III Remittance Rate applicable to such REMIC III Component.
On and after the Transition Date and with respect to (i) each Class of
Sequential
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Pay Certificates, the REMIC IV Remittance Rate applicable to the REMIC IV P&I
Regular Interest which has the same alphabetical (and, if applicable, numerical)
designation as such Class of Sequential Pay Certificates and (ii) each REMIC IV
Component, the REMIC IV Remittance Rate applicable to such REMIC IV Component.
"Paying Agent": The paying agent appointed pursuant to Section 8.13. If no
such paying agent has been appointed or if such paying agent has been so
appointed, but the Trustee shall have terminated such appointment, then the
Trustee shall be the Paying Agent.
"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(a) and (b).
"P&I Advance Date": The Business Day immediately preceding each
Distribution Date.
"Penalty Interest": With respect to any Mortgage Loan (or successor REO
Loan), any amounts collected thereon, other than late payment charges, or
Prepayment Premiums or Yield Maintenance Charges, that represent penalty
interest (arising out of a default) in excess of interest on the Stated
Principal Balance of such Mortgage Loan (or successor REO Loan) accrued at the
related Mortgage Rate.
"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 Closing Date,
as specified on the face thereof, and the denominator of which is the Original
Principal Balance or Original Notional Amount, as the case may be, of the
relevant Class. With respect to a Residual Certificate, the percentage interest
in distributions to be made with respect to the relevant Class, as stated on the
face of such Certificate.
"Periodic Payment": With respect to any Mortgage Loan as of any Due Date,
the scheduled payment of principal and/or interest on such Mortgage Loan,
including any 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 by reason of a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section
3.20).
"Permitted Investments": Any one or more of the following obligations or
securities (including obligations or securities of the Trustee if otherwise
qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as to timely
payment of principal and interest by, the United States or any
agency or instrumentality thereof (having original maturities of not
more than 365 days), provided such obligations are backed by the
full faith and credit of the United States. Such obligations must be
limited to those instruments that have a predetermined fixed dollar
amount of principal due at maturity that cannot vary or change. If
rated, such an
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obligation must not have an "r" highlighter affixed to its rating by
Standard & Poor's. Interest may either by fixed or variable. If such
interest is variable, interest must be tied to a single interest
rate index plus a single fixed spread (if any), and move
proportionately with that index;
(ii) repurchase obligations with respect to any security described in
clause (i) above (having original maturities of not more than 365
days), provided that the short-term deposit or debt obligations, of
the party agreeing to repurchase such obligations are rated in the
highest rating categories of each of Moody's and Standard & Poor's
or such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the Rating Agencies. In
addition, any such item must not have an "r" highlighter affixed to
its rating by Standard & Poor's, and its terms must have a
predetermined fixed dollar amount of principal due at maturity that
cannot very or change. Interest may either be fixed or variable. If
such interest is variable, interest must be tied to a single
interest rate index plus a single fixed spread (if any), and move
proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits and bankers'
acceptances of any bank or trust company organized under the laws of
the United States or any state thereof (having original maturities
of not more than 365 days), the short term obligations of which are
rated in the highest rating categories of each of Moody's and
Standard & Poor's or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates, as evidenced in writing by the Rating
Agencies. In addition, any such item must not have an "r"
highlighter affixed to its rating by Standard & Poor's, and its
terms should have a predetermined fixed dollar amount of principal
due at maturity that cannot vary or change. Interest may either be
fixed or variable. If such interest is variable, interest must be
tied to a single interest rate index plus a single fixed spread (if
any), and move proportionately with that index;
(iv) commercial paper (having original maturities of not more than 365
days) of any corporation incorporated under the laws of the United
States or any state thereof (or if not so incorporated, the
commercial paper is United States Dollar denominated and amounts
payable thereunder are not subject to any withholding imposed by any
non-United States jurisdiction) which is rated in the highest rating
category of each of Moody's and Standard & Poor's or such lower
rating as will not result in qualification, downgrading or
withdrawal of the ratings then assigned to the Certificates, as
evidenced in writing by the Rating Agencies. The commercial paper
should not
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have an "r" highlighter affixed to its rating by Standard & Poor's
and by its terms must have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change. Interest may
either by fixed or variable. If such interest is variable, interest
must be tied to a single interest rate index plus a single fixed
spread (if any), and move proportionately with that index;
(v) units of money market funds rated in the highest rating category of
Moody's and AAAm or AAAm-G by Standard & Poor's (or such lower
rating as will not result in qualification, downgrading or
withdrawal of the ratings then assigned to the Certificates, as
evidenced in writing by the Rating Agencies) and which seeks to
maintain a constant net asset value; and
(vi) any other obligation or security acceptable to each Rating Agency,
evidence of which acceptability shall be provided in writing by each
Rating Agency to the Master Servicer, the Special Servicer and the
Trustee.
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; and (2) 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.
"Permitted Transferee": Any Transferee of a Residual Certificate other than
a Disqualified Organization or Non-United States Person.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plurality Residual Certificateholder": As to any taxable year of REMIC I,
REMIC II, REMIC III or REMIC IV, the Holder of Certificates holding the largest
Percentage Interest of the related Class of Residual Certificates.
"Policy Termination Event": With respect to any Lease Enhancement Policy or
RVI Policy, any abatement, rescission, cancellation, termination, contest, legal
process, arbitration or disavowal of liability.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, 0% CPR (within the meaning of the
Private Placement Memorandum).
"Prepayment Interest Excess": With respect to any Mortgage Loan that was
subject to a Principal Prepayment in full or in part during any Collection
Period, which Principal
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Prepayment was applied to such Mortgage Loan following such Mortgage Loan's Due
Date in such Collection Period (or, with respect to any Semi-Annual Mortgage
Loan, following the 1st day of the month), the amount of interest (net of the
related Master Servicing Fee) accrued on the amount of such Principal Prepayment
during the period from and after such Due Date (or, with respect to any
Semi-Annual Mortgage Loan, following the 1st day of the month), to the extent
collected (exclusive of any related Prepayment Premium or Yield Maintenance
Charge actually collected).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan that was
subject to a Principal Prepayment in full or in part during any Collection
Period, which Principal Prepayment was applied to such Mortgage Loan prior to
such Mortgage Loan's Due Date (or, with respect to any Semi-Annual Mortgage
Loan, prior to the 1st day of the month) in such Collection Period, the amount
of interest, to the extent not collected from the related Mortgagor (without
regard to any Prepayment Premium or Yield Maintenance Charge actually
collected), that would have accrued at a rate per annum equal to the sum of (x)
the related Net Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee
Rate, on the amount of such Principal Prepayment during the period commencing on
the date as of which such Principal Prepayment was applied to such Mortgage Loan
and ending on the day immediately preceding such Due Date (or, with respect to
any Semi-Annual Mortgage Loan, prior to the 1st day of the month), inclusive.
"Prepayment Premium": Any premium, penalty or fee (other than a Yield
Maintenance Charge) paid or payable, as the context requires, by a Mortgagor in
connection with a Principal Prepayment.
"Prime Rate": The "prime rate" 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 the "prime rate", then the Master
Servicer 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
Master Servicer shall select a comparable interest rate index. In either case,
such selection shall be made by the Master Servicer in its sole discretion and
the Master Servicer shall notify the Trustee and the Special Servicer in writing
of its selection.
"Principal Distribution Amount": With respect to any Distribution Date, the
aggregate of the following:
(a) the aggregate of the principal portions of all Scheduled Payments
(other than Balloon Payments) and any Assumed Scheduled Payments due or
deemed due in respect of the Mortgage Loans for their respective Due Dates
occurring during the related Collection Period;
(b) the aggregate of all Principal Prepayments received on the
Mortgage Loans during the related Collection Period;
(c) with respect to any Mortgage Loan as to which the related Stated
Maturity Date occurred during or prior to the related Collection Period,
any payment of principal (other than a Principal Prepayment) made by or on
behalf of
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the related Mortgagor during the related Collection Period (including any
Balloon Payment), net of any portion of such payment that represents a
recovery of the principal portion of any Scheduled Payment (other than a
Balloon Payment) due, or the principal portion of any Assumed Scheduled
Payment deemed due, in respect of such Mortgage Loan on a Due Date during
or prior to the related Collection Period and not previously recovered;
(d) the aggregate of all Liquidation Proceeds, Insurance Proceeds and,
to the extent not otherwise included in clause (a), (b) or (c) above,
payments that were received on the Mortgage Loans during the related
Collection Period and that were identified and applied by the Master
Servicer and/or Special Servicer as recoveries of principal of such
Mortgage Loans, in each case net of any portion of such amounts that
represents a recovery of the principal portion of any Scheduled Payment
(other than a Balloon Payment) due, or of the principal portion of any
Assumed Scheduled Payment deemed due, in respect of the related Mortgage
Loan on a Due Date during or prior to the related Collection Period and not
previously recovered;
(e) with respect to any REO Properties, the aggregate of the principal
portions of all Assumed Scheduled Payments deemed due in respect of the
related REO Loans for their respective Due Dates occurring during the
related Collection Period;
(f) with respect to any REO Properties, the aggregate of all
Liquidation Proceeds, Insurance Proceeds and REO Revenues that were
received during the related Collection Period on such REO Properties and
that were identified and applied by the Master Servicer and/or Special
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 Scheduled Payment (other than a Balloon Payment)
due, or of the principal portion of any Assumed Scheduled Payment deemed
due, in respect of the related REO Loan or the predecessor Mortgage Loan on
a Due Date during or prior to the related Collection Period and not
previously recovered; and
(g) if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal Distribution Amount
for the immediately preceding Distribution Date, over the aggregate
distributions of principal made on the Certificates on such immediately
preceding Distribution Date pursuant to Section 4.01.
"Principal Prepayment": Any payment of principal made by the Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date; and
provided that it shall not include a payment of principal that is accompanied by
an amount of interest representing scheduled interest due on any date or dates
in any month or months subsequent to the month of prepayment.
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"Principal Recovery Fee": With respect to each Specially Serviced Mortgage
Loan, Corrected Mortgage Loan and REO Loan, the fee payable to the Special
Servicer out of certain related principal recoveries pursuant to the second
paragraph of Section 3.11(c).
"Private Placement Memorandum": The Private Placement Memorandum, as
supplemented by the PPM Supplement and Base Prospectus, dated December 29, 1998
relating to the placement of the Class F, Class G, Class H and Class IO-2
Certificates.
"Privileged Person": Any Certificateholder, Certificate Owner, any Person
identified by any Certificateholder or Certificate Owner as a prospective
transferee of a Certificate or interest therein, any Rating Agency, any
Underwriter or any party hereto.
"Prospectus": The prospectus of the Depositor, as supplemented by the
Prospectus Supplement, relating to the registration of Registered Certificates
under the Securities Act.
"Prospectus Supplement": The final prospectus supplement of the Depositor
relating to the registration of the Registered Certificates under the Securities
Act.
"Purchase Price": With respect to any Mortgage Loan to be purchased by the
Mortgage Loan Seller pursuant to the Mortgage Loan Purchase Agreement, by the
Majority Subordinate Certificateholder pursuant to Section 3.18(b), by the
Master Servicer or the Special Servicer pursuant to Section 3.18(c) or by the
Depositor, the Special Servicer or the Majority Subordinate Certificateholder or
the Master Servicer pursuant to Section 9.01 or to be otherwise sold pursuant to
Section 3.18(d), a cash price equal to the outstanding principal balance of such
Mortgage Loan as of the date of purchase, together with (a) all accrued and
unpaid interest on such Mortgage Loan at the related Mortgage Rate to but not
including the Due Date in the Collection Period of purchase plus any accrued
interest on P&I Advances, (b) all related and unreimbursed Servicing Advances
plus any accrued interest thereon, (c) any reasonable costs and expenses
incurred by the Master Servicer, the Special Servicer or the Trust Fund in
connection with any such purchase by the Mortgage Loan Seller (to the extent not
included in clause (b) above) and (d) any other Additional Trust Fund Expenses
in respect of such Mortgage Loan (except that Additional Trust Fund Expenses in
respect of such Mortgage Loan allocable to any Class of Certificates owned by
the Majority Subordinate Certificateholder shall not be included in the Purchase
Price with respect to a purchase made by the Majority Subordinate
Certificateholder pursuant to Section 3.18(b)); provided, that the Purchase
Price shall not be reduced by any outstanding P&I Advance.
"Qualified Insurer": An insurance company or security or bonding company
qualified to write the related Insurance Policy in the relevant jurisdiction.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on the
date of substitution: (i) have an outstanding Stated Principal Balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, not in excess of the Stated Principal
Balance of the deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs; (ii) have a Mortgage Rate not less than
the Mortgage Rate of the deleted Mortgage Loan; (iii) have the same Due Date as
the deleted Mortgage Loan; (iv) accrue interest on the same basis as the deleted
Mortgage Loan
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(for example, on the basis of a 360-day year consisting of twelve 30-day
months); (v) have a remaining term to stated maturity not greater than, and not
more than two years less than, the remaining term to stated maturity of the
deleted Mortgage Loan; (vi) have an original Loan-to-Value Ratio not higher than
that of the deleted Mortgage Loan and a current Loan-to-Value Ratio not higher
than the then current Loan-to-Value Ratio of the deleted Mortgage Loan; (vii)
comply as of the date of substitution with all of the representations and
warranties set forth in the Mortgage Loan Purchase Agreement; (viii) have an
Environmental Assessment that indicates no adverse environmental conditions with
respect to the related Mortgaged Property and which will be delivered as a part
of the related Mortgage File; (ix) have an original Debt Service Coverage Ratio
of not less than the original Debt Service Coverage Ratio of the deleted
Mortgage Loan and a current Debt Service Coverage Ratio of not less than the
current Debt Service Coverage Ratio of the deleted Mortgage Loan; (x) at the
Trustee's request, be determined by an Opinion of Counsel (at the Mortgage Loan
Seller's expense) to be a "qualified replacement mortgage" within the meaning of
Section 860G(a)(4) of the Code; (xi) not have a maturity date after the date two
years prior to the Rated Final Distribution Date; (xii) not be substituted for a
deleted Mortgage Loan unless the Trustee has received prior confirmation in
writing by each Rating Agency that such substitution will not result in the
withdrawal, downgrade, or qualification of the rating assigned by the Rating
Agency to any Class of Certificates then rated by the Rating Agency (the cost,
if any, of obtaining such confirmation to be paid by the Mortgage Loan Seller);
(xiii) have a date of origination that is not more than 12 months prior to the
date of substitution; (xiv) have been approved by the Controlling Class
Representative; which approval of the Controlling Class Representative may not
be unreasonably withheld, as determined by the Special Servicer; and (xv) not be
substituted for a deleted Mortgage Loan if it would result in the termination of
the REMIC status of any of the REMICs established under this Agreement or the
imposition of tax on any of such REMICs other than a tax on income expressly
permitted or contemplated to be received by the terms of this Agreement, as
determined by an Opinion of Counsel. In the event that one or more mortgage
loans are substituted for one or more deleted Mortgage Loans, then the amounts
described in clause (i) shall be determined on the basis of aggregate principal
balances and the rates described in clause (ii) above and the remaining term to
stated maturity referred to in clause (v) above shall be determined on a
weighted average basis. When a Qualified Substitute Mortgage Loan is substituted
for a deleted Mortgage Loan, the Mortgage Loan Seller shall certify that the
Mortgage Loan meets all of the requirements of the above definition and shall
send such certification to the Trustee.
"Rated Final Distribution Date": The Distribution Date to occur in October
2035.
"Rating Agency": Each of Moody's and Standard & Poor's.
"Realized Loss": With respect to: (1) each defaulted Mortgage Loan as to
which a Final Recovery Determination has been made, or with respect to any
successor 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 (a) the
unpaid principal balance of such Mortgage Loan or REO Loan, as the case may be,
as of the commencement of the Collection Period in which the Final Recovery
Determination was made, plus (b) without taking into account the amount
described in subclause
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(1)(d) of this definition, all accrued but unpaid interest on such Mortgage Loan
or such REO Loan, as the case may be, at the related Mortgage Rate to but not
including the Due Date in the Collection Period in which the Final Recovery
Determination was made, plus (c) 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 (d) all payments and proceeds, if any,
received in respect of such Mortgage Loan or the REO Property that relates to
such REO Loan, as the case may be, during the Collection Period in which such
Final Recovery Determination was made; (2) each defaulted Mortgage Loan as to
which any portion of the principal or previously accrued interest (other than
Penalty Interest) payable thereunder was canceled 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 Special Servicer pursuant to Section 3.20, the amount of such principal
and/or interest so canceled; and (3) each 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 Special Servicer pursuant to Section 3.20, the amount of the
consequent reduction in the interest portion of each successive Periodic Payment
due thereon (each such Realized Loss shall be deemed to have been incurred on
the Due Date for each affected Periodic Payment).
"Record Date": With respect to any Distribution Date, the last Business
Day of the month immediately preceding the month in which such Distribution Date
occurs.
"Registered Certificate": Any Class A-1, Class A-2, Class B, Class C,
Class D, Class E or Class IO-1 Certificate that has been registered under the
Securities Act by the Depositor.
"Regular Certificate": Any Class A-1, Class A-2, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class IO-1 or Class IO-2 Certificate.
"Reimbursement Rate": The rate per annum applicable to the accrual of
interest on Servicing Advances in accordance with Section 3.03(d) and on P&I
Advances in accordance with Section 4.03(d), which rate per annum is equal to
the Prime Rate.
"REMIC": A "real estate mortgage investment conduit" as defined in Section
860D of the Code.
"REMIC Accrued Interest": With respect to:
(1) 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 as of the commencement of the Collection Period for such
Distribution Date, accrued on the REMIC Principal Balance of such REMIC I
Regular Interest outstanding immediately prior to such Distribution Date
and, to the extent permitted under applicable law, also on any REMIC
Distributable Interest in respect of such REMIC I Regular Interest from
prior Distribution Dates that was not previously deemed paid;
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(2) any REMIC II Regular Interest for any Distribution Date, one
month's interest at the REMIC II Remittance Rate applicable to such REMIC
II Regular Interest as of the commencement of the Collection Period for
such Distribution Date, accrued on the REMIC Principal Balance of such
REMIC II Regular Interest outstanding immediately prior to such
Distribution Date and, to the extent permitted under applicable law, also
on any REMIC Distributable Interest in respect of such REMIC II Regular
Interest from prior Distribution Dates that was not previously deemed
paid;
(3) any REMIC III P&I Regular Interest for any Distribution Date,
one month's interest at the REMIC III Remittance Rate applicable to such
REMIC III P&I Regular Interest as of the commencement of the Collection
Period for such Distribution Date, accrued on the REMIC Principal Balance
of such REMIC III P&I Regular Interest outstanding immediately prior to
such Distribution Date and, to the extent permitted under applicable law,
also on any REMIC Distributable Interest in respect of such REMIC III P&I
Regular Interest from prior Distribution Dates that was not previously
deemed paid;
(4) any REMIC III Component for any Distribution Date, one month's
interest at the REMIC III Remittance Rate applicable to such REMIC III
Component as of the commencement of the Collection Period for such
Distribution Date, accrued on the REMIC III Component Notional Amount of
such REMIC III Component outstanding immediately prior to such
Distribution Date and, to the extent permitted under applicable law, also
on any REMIC Distributable Interest in respect of such REMIC III Component
from prior Distribution Dates that was not previously deemed paid;
(5) any REMIC IV P&I Regular Interest for any Distribution Date, one
month's interest at the REMIC IV Remittance Rate applicable to such REMIC
IV P&I Regular Interest as of the commencement of the Collection Period
for such Distribution Date, accrued on the REMIC Principal Balance of such
REMIC IV P&I Regular Interest outstanding immediately prior to such
Distribution Date and, to the extent permitted under applicable law, also
on any REMIC Distributable Interest in respect of such REMIC IV P&I
Regular Interest from prior Distribution Dates that was not previously
deemed paid; and
(6) any REMIC IV Component for any Distribution Date, one month's
interest at the REMIC IV Remittance Rate applicable to such REMIC IV
Component as of the commencement of the Collection Period for such
Distribution Date, accrued on the REMIC IV Component Notional Amount of
such REMIC IV Component outstanding immediately prior to such Distribution
Date and, to the extent permitted under applicable law, also on any REMIC
Distributable Interest in respect of such REMIC IV Component from prior
Distribution Dates that was not previously deemed paid.
"REMIC Administrator": The Trustee or any REMIC administrator appointed
pursuant to Section 8.14.
"REMIC Distributable Interest": With respect to:
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(1) any REMIC I Regular Interest for any Distribution Date, the
REMIC 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) any Net Aggregate Prepayment Interest Shortfall for such Distribution
Date, multiplied by (ii) a fraction, the numerator of which is the REMIC
Accrued Interest in respect of such REMIC I Regular Interest for such
Distribution Date, and the denominator of which is the aggregate REMIC
Accrued Interest in respect of all the REMIC I Regular Interests for such
Distribution Date;
(2) any REMIC II Regular Interest for any Distribution Date, the
REMIC Accrued Interest in respect of such REMIC II Regular Interest for
such Distribution Date, reduced (to not less than zero) by the product of
(i) any Net Aggregate Prepayment Interest Shortfall for such Distribution
Date, multiplied by (ii) a fraction, expressed as a percentage, the
numerator of which is the REMIC Accrued Interest in respect of such REMIC
II Regular Interest for such Distribution Date, and the denominator of
which is the aggregate REMIC Accrued Interest in respect of all the REMIC
II Regular Interests for such Distribution Date;
(3) any REMIC III P&I Regular Interest for any Distribution Date,
the REMIC Accrued Interest in respect of such REMIC III P&I Regular
Interest for such Distribution Date, reduced (to not less than zero) by
the product of (i) any Net Aggregate Prepayment Interest Shortfall for
such Distribution Date, multiplied by (ii) a fraction, the numerator of
which is the REMIC Accrued Interest in respect of such REMIC III P&I
Regular Interest for such Distribution Date, and the denominator of which
is the aggregate REMIC Accrued Interest in respect of all the REMIC III
P&I Regular Interests for such Distribution Date;
(4) any REMIC III Component for any Distribution Date, the REMIC
Accrued Interest in respect of such REMIC III Component for such
Distribution Date, reduced (to not less than zero) by the product of (i)
any Net Aggregate Prepayment Interest Shortfall for such Distribution
Date, multiplied by (ii) a fraction, the numerator of which is the REMIC
Accrued Interest in respect of such REMIC III Component for such
Distribution Date, and the denominator of which is the aggregate REMIC
Accrued Interest in respect of all the REMIC III Components for such
Distribution Date;
(5) any REMIC IV P&I Regular Interest for any Distribution Date, the
REMIC Accrued Interest in respect of such REMIC IV P&I Regular Interest
for such Distribution Date, reduced (to not less than zero) by the product
of (i) any Net Aggregate Prepayment Interest Shortfall for such
Distribution Date, multiplied by (ii) a fraction, the numerator of which
is the REMIC Accrued Interest in respect of such REMIC IV P&I Regular
Interest for such Distribution Date, and the denominator of which is the
aggregate REMIC Accrued Interest in respect of all the REMIC IV P&I
Regular Interests for such Distribution Date; and
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(6) any REMIC IV Component for any Distribution Date, the REMIC Accrued
Interest in respect of such REMIC IV Component for such Distribution Date,
reduced (to not less than zero) by the product of (i) any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date, multiplied by (ii) a
fraction, the numerator of which is the REMIC Accrued Interest in respect of
such REMIC IV Component for such Distribution Date, and the denominator of which
is the aggregate REMIC Accrued Interest in respect of all the REMIC IV
Components for such Distribution Date.
"REMIC Principal Balance": The principal amount of any REMIC I Regular
Interest, REMIC II Regular Interest, REMIC III P&I Regular Interest or REMIC IV
P&I Regular Interest outstanding as of any date of determination. As of the
Closing Date, the REMIC Principal Balance of (1) each REMIC I Regular Interest
shall equal the Cut-off Date Balance of the related Mortgage Loan, (2) each
REMIC II Regular Interest shall equal the amount set forth with respect thereto
in the Preliminary Statement, and (3) each REMIC III P&I Regular Interest shall
equal the REMIC Principal Balance of the Corresponding REMIC II Regular Interest
as set forth in the Preliminary Statement hereto. As of the Transition Date, the
REMIC Principal Balance of each REMIC IV P&I Regular Interest will equal the
then-current REMIC Principal Balance of the Corresponding REMIC III P&I Regular
Interest. On each Distribution Date, the REMIC Principal Balance of each REMIC
II Regular Interest shall be permanently reduced by all distributions of
principal deemed to have been made thereon on such Distribution Date pursuant to
Section 4.01(h), and shall be further permanently reduced on such Distribution
Date by all Realized Losses and Additional Trust Fund Expenses deemed to have
been allocated thereto on such Distribution Date pursuant to Section 4.04(b). On
each Distribution Date, the REMIC Principal Balance of each REMIC I Regular
Interest shall be permanently reduced by all distributions of principal deemed
to have been made in respect of such REMIC I Regular Interest on such
Distribution Date pursuant to Section 4.01(i), and shall be further permanently
reduced on such Distribution Date by all Realized Losses and Additional Trust
Fund Expenses deemed to have been allocated thereto on such Distribution Date
pursuant to Section 4.04(c). On each Distribution Date, the REMIC Principal
Balance of each REMIC III P&I Regular Interest shall be permanently reduced by
all distributions of principal deemed to have been made thereon on such
Distribution Date pursuant to Section 4.01(h), and shall be further permanently
reduced on such Distribution Date by all Realized Losses and Additional Trust
Fund Expenses deemed to have been allocated thereto on such Distribution Date
pursuant to Section 4.04(b). On each Distribution Date on and after the
Transition Date, the REMIC Principal Balance of each REMIC IV P&I Regular
Interest shall be permanently reduced by all distributions of principal deemed
to have been made thereon on such Distribution Date pursuant to Section 4.01(b),
and shall be further permanently reduced on such Distribution Date by all
Realized Losses and Additional Trust Fund Expenses deemed to have been allocated
thereto on such Distribution Date pursuant to Section 4.04(b).
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
proposed, temporary and final Treasury regulations and any published rulings,
notices and announcements promulgated thereunder, as the foregoing may be in
effect from time to time.
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"REMIC I": The segregated pool of assets subject hereto, constituting the
primary trust created hereby and to be administered hereunder with respect to
which a separate REMIC election is to be made, and consisting of: (i) the
Mortgage Loans as from time to time are subject to this Agreement and all
payments under and proceeds of such Mortgage Loans received after the Closing
Date (excluding any interest (other than Penalty Interest) or principal payable
on the Mortgage Loans which is attributable to any portion of a Servicing Fee or
Principal Recovery Fee that is deemed to be in excess of the amount of such
Servicing Fee or Principal Recovery Fee which constitutes reasonable servicing
compensation within the meaning of the REMIC Provisions), together with all
documents included in the related Mortgage Files and any Escrow Payments and
Reserve Funds; (ii) any REO Property acquired in respect of a Mortgage Loan;
(iii) such funds or assets (other than those representing any interest (other
than Penalty Interest) or principal payable on the Mortgage Loans which is
attributable to any portion of a Servicing Fee or Principal Recovery Fee that is
deemed to be in excess of the amount of such Servicing Fee or Principal Recovery
Fee that constitutes reasonable servicing compensation within the meaning of the
REMIC Provisions) as from time to time are deposited in the Certificate Account,
the Distribution Account, the Interest Reserve Account and, if established, the
REO Account; and (iv) the rights of the Depositor under Sections 2, 3, 9, 10,
12, 13, 14, 15, 16 and 17 of the Mortgage Loan Purchase Agreement.
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I, as described in the Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to any REMIC I Regular Interest
for any Distribution Date, either: (1) if, in accordance with its terms in
effect on the Closing Date, the related Mortgage Loan accrues interest on a
30/360 Basis, the Net Mortgage Rate in effect for the related Mortgage Loan as
of the Closing Date; or (2) if, in accordance with its terms in effect on the
Closing Date, the related Mortgage Loan accrues interest on an Actual/360 Basis
(or any other interest accrual basis besides a 30/360 Basis), a rate per annum
equal to (a) a fraction (expressed as a percentage and rounded to the sixth
decimal place), the numerator of which is the product of 12 times the aggregate
amount of interest that would accrue during the calendar month preceding the
month in which such Distribution Date occurs on the REMIC Principal Balance of
such REMIC I Regular Interest outstanding immediately prior to such Distribution
Date if such interest were calculated (A) at the Mortgage Rate in effect for the
related Mortgage Loan as of the Closing Date and (B) on an Actual/360 Basis (or
on such other basis, besides a 30/360 Basis, that was applicable to the accrual
of interest on the related Mortgage Loan as of the Closing Date), and the
denominator of which is the REMIC Principal Balance of such REMIC I Regular
Interest immediately prior to such Distribution Date, minus (b) the sum of (i)
the Master Servicing Fee Rate for the related Mortgage Loan and (ii) the Trustee
Fee Rate; provided that, in the case of an Interest Reserve Loan, the amount of
the numerator for the fraction described in clause (2)(a) above shall (x) for
the Distribution Date that occurs during February of each year or during January
of each year that is not a leap year, be reduced by the related Interest Reserve
Amount that is to be transferred from the Certificate Account to the Interest
Reserve Account on such Distribution Date and (y) for the Distribution Date that
occurs during March of each year, be equal to thirty days'
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interest at the related Mortgage Rate, less the amount of interest that actually
accrues on such Mortgage Loan.
"REMIC II": The segregated pool of assets consisting of all of the REMIC I
Regular Interests conveyed in trust to the Trustee for the benefit of REMIC III,
as holder of the REMIC II Regular Interests, and the Holders of the Class R-II
Certificates pursuant to Section 2.06, with respect to which a separate REMIC
election is to be made.
"REMIC II Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
"regular interest" in REMIC II. Each REMIC II Regular Interest shall accrue
interest at the REMIC II Remittance Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial REMIC Principal Balance as
set forth in the Preliminary Statement hereto. The designations for the
respective REMIC II Regular Interests are set forth in the Preliminary Statement
hereto.
"REMIC II Remittance Rate": With respect to each REMIC II Regular Interest
for any Distribution Date, the Weighted Average REMIC I Remittance Rate for such
Distribution Date.
"REMIC III": The segregated pool of assets consisting of all of the REMIC
II Regular Interests conveyed in trust to the Trustee pursuant to Section 2.08
for the benefit of the Holders of the Regular Certificates and the Holders of
the Class R-III Certificates prior to the Transition Date and for the benefit of
REMIC IV, as holder of the REMIC III Regular Interests, and the Holders of the
Class R-III Certificates on and after the Transition Date, with respect to which
a separate REMIC election is to be made.
"REMIC III Component": Any of the separate beneficial ownership interests
in REMIC III issued hereunder and designated as a REMIC III Component. Each
REMIC III Component shall accrue interest at the REMIC III Remittance Rate in
effect from time to time for such REMIC III Component, and shall be entitled to
distributions of interest equal to the Accrued Component Interest for such REMIC
III Component. The designations for the respective REMIC III Components are set
forth in the Preliminary Statement hereto.
"REMIC III Component Notional Amount": With respect to (i) each REMIC III
Component other than the REMIC III IO-2 Component and any date of determination,
an amount equal to the REMIC Principal Balance of the Corresponding REMIC II
Regular Interest as set forth in the Preliminary Statement hereto, and (ii) the
REMIC III IO-2 Component and any date of determination, an amount equal to the
aggregate of the REMIC Principal Balances of REMIC II Regular Interests F, G and
H.
"REMIC III IO-2 Component": The separate beneficial ownership interest in
REMIC III issued hereunder and designated as the REMIC III IO-2 Component in the
Preliminary Statement. The REMIC III IO-2 Component shall accrue interest at the
REMIC III Remittance Rate for the REMIC III IO-2 Component in effect from time
to time, and shall
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be entitled to distributions of interest equal to the Accrued Component Interest
for such REMIC III IO-2 Component.
"REMIC III P&I Regular Interest": Any of the separate beneficial ownership
interests in REMIC III issued hereunder and designated as a REMIC III P&I
Regular Interest. Each REMIC III P&I Regular Interest shall accrue interest at
the REMIC III Remittance Rate in effect from time to time for such REMIC III P&I
Regular Interest, and shall be entitled to distributions of principal, subject
to the terms and conditions hereof, in an aggregate amount equal to its initial
REMIC Principal Balance as set forth in the Preliminary Statement hereto. The
designations for the respective REMIC III P&I Regular Interests are set forth in
the Preliminary Statement hereto.
"REMIC III Regular Interest": Any of the REMIC III P&I Regular Interests
and the REMIC III Components.
"REMIC III Remittance Rate": With respect to,
(i) each of REMIC III P&I Regular Interests A-1, A-2, B, C, D and E for
any Distribution Date, the Weighted Average REMIC I Remittance Rate;
(ii) REMIC III P&I Regular Interest F for any Distribution Date, 5.35%;
(iii) REMIC III P&I Regular Interest G for any Distribution Date, 5.35%;
(iv) REMIC III P&I Regular Interest H for any Distribution Date, 5.35%;
(v) each of REMIC III Components F, G and H for any Distribution Date,
the excess, if any, of the Weighted Average REMIC I Remittance Rate
for such Distribution Date over the sum of (A) the REMIC III
Remittance Rate applicable for such Distribution Date to the REMIC
III P&I Regular Interest which corresponds to such REMIC III
Component as set forth in the Preliminary Statement hereto and (B)
the REMIC III Remittance Rate for the REMIC III IO-2 Component; and
(vi) the REMIC III IO-2 Component for any Distribution Date, 0.25%.
"REMIC IV": On and after the Transition Date, the segregated pool of
assets consisting of all of the REMIC III Regular Interests conveyed in trust to
the Trustee for the benefit of the Holders of the Regular Certificates and the
Holders of the Class R-IV Certificates pursuant to Section 2.10 and with respect
to which a separate REMIC election is to be made.
"REMIC IV Component": On and after the Transition Date, any of the
separate non-certificated beneficial ownership interests in REMIC IV issued
hereunder and designated as a REMIC IV Component. Each REMIC IV Component shall
accrue interest at the REMIC IV Remittance Rate in effect from time to time for
such REMIC IV Component, and shall be entitled to distributions of interest
equal to the Accrued Component Interest for such REMIC IV
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Component. The designations for the respective REMIC IV Components are set forth
in the Preliminary Statement hereto.
"REMIC IV Component Notional Amount": With respect to (i) each REMIC IV
Component other than the REMIC IV IO-2 Component and any date of determination
on and after the Transition Date, an amount equal to the REMIC Principal Balance
of the Corresponding REMIC III P&I Regular Interest as set forth in the
Preliminary Statement hereto, and (ii) the REMIC IV IO-2 Component and any date
of determination on and after the Transition Date, an amount equal to the
aggregate of the REMIC Principal Balances of REMIC III P&I Regular Interests F,
G and H.
"REMIC IV IO-2 Component": The separate beneficial ownership interest in
REMIC IV issued hereunder and designated as the REMIC IV IO-2 Component in the
Preliminary Statement. The REMIC IV IO-2 Component shall accrue interest at the
REMIC IV Remittance Rate for the REMIC IV IO-2 Component in effect from time to
time, and shall be entitled to distributions of interest equal to the Accrued
Component Interest for such REMIC IV IO-2 Component.
"REMIC IV P&I Regular Interest": On and after the Transition Date, any of
the separate beneficial ownership interests in REMIC IV issued hereunder and
designated as a REMIC IV P&I Regular Interest and as evidenced by a
Corresponding Class of Sequential Pay Certificates. Each REMIC IV P&I Regular
Interest shall accrue interest at the REMIC IV Remittance Rate in effect from
time to time for such REMIC IV P&I Regular Interest, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in an
aggregate amount equal to its REMIC Principal Balance. The designations for the
respective REMIC IV P&I Regular Interests are set forth in the Preliminary
Statement hereto.
"REMIC IV Regular Interest": On and after the Transition Date, any of the
REMIC IV P&I Regular Interests and the REMIC IV Components.
"REMIC IV Remittance Rate": With respect to,
(i) each of REMIC IV P&I Regular Interests A-1, A-2, B, C, D and E for
any Distribution Date after the Transition Date, the respective rate
specified therefor in the Transition Supplement for such REMIC IV
P&I Regular Interest;
(ii) REMIC IV P&I Regular Interest F for any Distribution Date after the
Transition Date, 5.35%;
(iii) REMIC IV P&I Regular Interest G for any Distribution Date after the
Transition Date, 5.35%;
(iv) REMIC IV P&I Regular Interest H for any Distribution Date after the
Transition Date, 5.35%;
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(v) each of REMIC IV Components A-1, A-2, B, C, D and E for any
Distribution Date after the Transition Date, the excess, if any, of
the Weighted Average REMIC I Remittance Rate for such Distribution
Date over the REMIC IV Remittance Rate applicable for such
Distribution Date to the REMIC IV P&I Regular Interest which
corresponds to such REMIC IV Component as set forth in the
Preliminary Statement hereto;
(vi) each of REMIC IV Components F, G and H for any Distribution Date
after the Transition Date, the excess, if any, of the Weighted
Average REMIC I Remittance Rate for such Distribution Date over the
sum of (A) the REMIC IV Remittance Rate applicable for such
Distribution Date to the REMIC IV P&I Regular Interest which
corresponds to such REMIC IV Component as set forth in the
Preliminary Statement hereto and (B) the REMIC IV Remittance Rate
for the REMIC IV IO-2 Component; and
(vii) the REMIC IV IO-2 Component for any Distribution Date after the
Transition Date, 0.25%.
"Rents from Real Property": With respect to any REO Property, gross income
of the character described in Section 856(d) of the Code.
"REO Account": A segregated 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 First Union Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, FUNB Series
1999-C1".
"REO Acquisition": The acquisition of any REO Property pursuant to Section
3.09.
"REO Disposition": The sale or other disposition of any 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. Each REO Loan shall be deemed to provide for
monthly payments of principal and/or interest equal to its Assumed Scheduled
Payment and otherwise to have the same terms and conditions as its predecessor
Mortgage Loan (such terms and conditions to be applied without regard to the
default on such predecessor Mortgage Loan and the acquisition of the related REO
Property as part of the Trust Fund). 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 its
predecessor Mortgage Loan as of the date of the related REO Acquisition. All
Scheduled Payments (other than a Balloon Payment), Assumed Scheduled Payments
(in the case of a Balloon Mortgage Loan delinquent in respect of its Balloon
Payment) and other amounts due and owing, or
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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. Collections in respect of each REO Loan
(after provision for amounts to be applied to the payment of, or to be
reimbursed to the Master Servicer, the Special Servicer, or the Trustee for the
payment of, the costs of operating, managing and maintaining the related REO
Property or for the reimbursement of the Master Servicer, the Special Servicer,
or the Trustee for other related Servicing Advances) shall be treated: first, as
a recovery of accrued and unpaid interest on such REO Loan at the related
Mortgage Rate to but not including the Due Date in the Collection Period of
receipt; second, as a recovery of principal of such REO Loan to the extent of
its entire unpaid principal balance; and third, in accordance with the normal
servicing practices of the Master Servicer, as a recovery of any other amounts
due and owing in respect of such REO Loan. Notwithstanding the foregoing, all
amounts payable or reimbursable to the Master Servicer, the Special Servicer or
the Trustee in respect of the predecessor Mortgage Loan as of the date of the
related REO Acquisition, including, without limitation, any unpaid Servicing
Fees and any unreimbursed Servicing Advances and P&I Advances, together with any
interest accrued and payable to the Master Servicer, the Special Servicer or the
Trustee in respect of such Servicing Advances and P&I Advances in accordance
with Sections 3.03(d) and 4.03(d), shall continue to be payable or reimbursable
to the Master Servicer, the Special Servicer or the Trustee, as the case may be,
in respect of an REO Loan pursuant to Section 3.05(a).
"REO Property": A Mortgaged Property acquired on behalf and in the name of
the Trustee for the benefit of the Certificateholders through foreclosure,
acceptance of a deed-in-lieu of foreclosure or otherwise in accordance with
applicable law in connection with the default or imminent default of a Mortgage
Loan.
"REO Revenues": All income, rents, profits and proceeds derived from the
ownership, operation or leasing of any REO Property.
"REO Status Report": A report substantially containing the information
described in Exhibit O attached hereto, and setting forth 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,
among other things, (i) the acquisition date of such REO Property, (ii) the
amount of income collected with respect to such REO Property (net of related
expenses) and other amounts, if any, received on such REO Property during the
related Collection Period and (iii) the value of the REO Property based on the
most recent appraisal or other valuation thereof available to the Special
Servicer as of such Determination Date (including any prepared internally by the
Special Servicer).
"REO Tax": As defined in Section 3.17(a).
"Request for Release": A request signed by a Servicing Officer, as
applicable, of the Master Servicer in the form of Exhibit D-1 attached hereto or
of the Special Servicer in the form of Exhibit D-2 attached hereto.
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"Required Appraisal": With respect to each Required Appraisal Mortgage
Loan, an appraisal of the related Mortgaged Property from an Independent
Appraiser selected by the Special Servicer, prepared in accordance with 12 CFR
ss.225.62 and conducted in accordance with the standards of the Appraisal
Institute.
"Required Appraisal Mortgage Loan": Each Mortgage Loan (i) that is sixty
(60) days or more delinquent in respect of any Periodic Payments, (ii) that
becomes an REO Loan, (iii) that has been modified by the Special Servicer to
reduce the amount of any Periodic Payment (other than a Balloon Payment), (iv)
with respect to which a receiver in bankruptcy is appointed and continues in
such capacity in respect of the related Mortgaged Property, (v) with respect to
which the related Mortgagor is subject to a bankruptcy proceeding or (vi) with
respect to which any Balloon Payment on such Mortgage Loan has not been paid by
its scheduled maturity date. Any Required Appraisal Mortgage Loan shall cease to
be such at such time as it has become a Corrected Mortgage Loan.
"Required Appraisal Value": An amount equal to 90% of the Appraised Value
(net of any prior liens and estimated liquidation expenses) of the Mortgaged
Property related to the subject Required Appraisal Mortgage Loan as determined
by a Required Appraisal; and provided further that for purposes of determining
any Appraisal Reduction Amount in respect of such Required Appraisal Mortgage
Loan, such Appraisal Reduction Amount shall be amended annually to reflect the
Required Appraisal Value determined pursuant to any Required Appraisal or letter
update of a Required Appraisal conducted subsequent to the original Required
Appraisal performed pursuant to Section 3.09(a).
"Reserve Account": The account or accounts created and maintained pursuant
to Section 3.03(f).
"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 environmental remediation, repairs and/or capital
improvements to the related Mortgaged Property.
"Residual Certificate": A Class R-I, Class R-II or Class R-III
Certificate, and on and after the Transition Date, a Class R-IV Certificate.
"Responsible Officer": When used with respect to (i) the initial Trustee
any officer or assistant officer in the Corporate Trust Services Group of the
initial Trustee and (ii) any successor Trustee, any officer or assistant officer
in the Corporate Trust Department of the Trustee, or any other officer or
assistant 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.
"Restricted Servicer Reports": From the Closing Date until immediately
preceding the Transition Date, each of the Watch List, Operating Statement
Analysis, NOI Adjustment Worksheet, Comparative Financial Status Report and each
Unrestricted Servicer Report and on and
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after the Transition Date, the Watch List, Operating Statement Analysis, NOI
Adjustment Worksheet and Comparative Financial Status Report.
"RVI Policy": A non-cancelable residual value insurance policy that
guaranties the Balloon Payment on each Insured Balloon Loan issued by an R.V.I.
Policy Insurer.
"RVI Policy Insurer": Either (i) R.V.I. American Insurance Company or its
successors and assigns or (ii) Financial Structures Limited or its successors
and assigns, with a cut-through endorsement issued by Royal Indemnity Company or
its successors and assigns.
"Scheduled Payment": With respect to any Mortgage Loan, for any Due Date
following the Cut-off Date as of which it is outstanding, the scheduled monthly
payment of principal and interest on such Mortgage Loan that is or would be, as
the case may be, payable by the related Mortgagor on such Due Date under the
terms of the related Mortgage Note as in effect on the Closing Date, without
regard to any subsequent 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 Special Servicer pursuant to Section 3.20, and assuming that each prior
Scheduled Payment has been made in a timely manner.
"Securities Act": The Securities Act of 1933, as amended.
"Semi-Annual Loan Interest Advance Amount": With respect to any
Semi-Annual Mortgage Loan and any Distribution Date occurring in a month in
which there is no Due Date for such Semi-Annual Mortgage Loan, one-sixth of the
Semi-Annual Loan Scheduled Interest Payment that is payable on the immediately
succeeding Due Date for such Semi-Annual Mortgage Loan (net of related Servicing
Fees).
"Semi-Annual Loan Scheduled Interest Payment": With respect to any
Semi-Annual Mortgage Loan, that portion of the scheduled semi-annual payment of
principal and/or interest on such Semi-Annual Mortgage Loan that relates to
interest and that is payable by the related Mortgagor under the related Mortgage
Note as in effect on the Closing Date without regard to any subsequent 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 Special Servicer
pursuant to Section 3.20, and assuming that each prior scheduled semi-annual
payment has been made in a timely manner.
"Semi-Annual Loan Swap Agreement": The swap transaction confirmation dated
as of December 1, 1998 between First Union National Bank and First Union
National Bank RC6578 with respect to the payment of scheduled interest under the
Semi-Annual Mortgage Loans or successor agreement.
"Semi-Annual Mortgage Loan": Each Mortgage Loan, the Periodic Payments of
which are due semi-annually pursuant to the terms of the related Mortgage Note
and that is identified as a Semi-Annual Mortgage Loan on the Mortgage Loan
Schedule.
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"Senior Certificate": Any Class A-1, Class A-2 or Class IO-1 Certificate.
"Sequential Pay Certificates": Any of the Regular Certificates other than
the Class IO-1 Certificates and Class IO-2 Certificates.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses incurred by or on behalf of the Master Servicer,
Special Servicer or the Trustee in connection with the servicing of a Mortgage
Loan, or in connection with the administration of any REO Property, including,
but not limited to, the cost of (a) compliance with the obligations of the
Master Servicer and the Special Servicer, if any, set forth in Section 3.03(c),
(b) the preservation, insurance, restoration, protection and management of a
Mortgaged Property, including the cost of any "forced placed" insurance policy
purchased by the Master Servicer to the extent such cost is allocable to a
particular Mortgaged Property that the Master Servicer or the Special Servicer
is required to cause to be insured pursuant to Section 3.07(a), (c) obtaining
any Insurance Proceeds or any Liquidation Proceeds of the nature described in
clauses (i)-(v) of the definition of "Liquidation Proceeds," (d) any enforcement
or judicial proceedings with respect to a Mortgaged Property, including, without
limitation, foreclosures, (e) any Required Appraisal or other appraisal
expressly required or permitted to be obtained hereunder, (f) the operation,
management, maintenance and liquidation of any REO Property, including, without
limitation, appraisals and (g) compliance with the obligations of the Master
Servicer or the Trustee set forth in Section 2.03(a) or (b). Notwithstanding
anything to the contrary, "Servicing Advances" shall not include allocable
overhead of the Master Servicer or the Special Servicer, such as costs for
office space, office equipment, supplies and related expenses, employee salaries
and related expenses and similar internal costs and expenses or costs and
expenses incurred by any such party in connection with its purchase of a
Mortgage Loan or REO Property. To the extent required by Section 3.11(d), all
Servicing Advances shall be made or reimbursed out of late collections and
Penalty Interest and recoveries of Advances otherwise owed to the Special
Servicer pursuant to Section 3.11(d).
"Servicing Fees": With respect to each Mortgage Loan and REO Loan, the
Master Servicing Fee and the Special Servicing Fee.
"Servicer Fee Amount": With respect to each Sub-Servicer and any date of
determination, the aggregate of the product of, for each Mortgage Loan serviced
by such Sub-Servicer, (a) the principal balance of such Mortgage Loan serviced
as of the end of the immediately preceding Collection Period multiplied by (b)
the servicing fee rate specified in the related Sub-Servicing Agreement for such
Mortgage Loan. With respect to the Master Servicer and any date of
determination, the aggregate of the product of, for each Mortgage Loan, (a) the
principal balance of such Mortgage Loan as of the end of the immediately
preceding Collection Period multiplied by (b) the difference between the Master
Servicing Fee
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Rate for such Mortgage Loan and the servicing fee rate (if any) applicable to
such Mortgage Loan as specified in the related Sub-Servicing Agreement related
to such Mortgage Loan.
"Servicing File": Any documents (other than documents required to be part
of the related Mortgage File) relating to the origination and servicing of any
Mortgage Loan, including appraisals, surveys, engineering reports and
environmental reports.
"Servicing Officer": Any officer or employee of the Master Servicer or the
Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, whose name and specimen signature appear on a
list of servicing officers furnished by such party to the Trustee and the
Depositor on the Closing Date, as such list may be amended from time to time.
"Servicing Standard": With respect to the Master Servicer or the Special
Servicer, the servicing and administration of the Mortgage Loans for which it is
responsible hereunder (a) in 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 similar
mortgage loans with similar borrowers (i) for other third-parties, giving due
consideration to customary and usual standards of practice of prudent
institutional commercial mortgage lenders servicing their own loans or (ii) held
in its own portfolio, whichever standard is higher, (b) with a view to the
maximization of the recovery on such Mortgage Loan on a net present value basis,
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 the
related Mortgagor, the Depositor, the Mortgage Loan Seller or any other party to
the transaction; (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
right of the Master Servicer or the Special Servicer, as the case may be, to
receive compensation or other fees for its services rendered pursuant to this
Agreement; (iv) the obligations of the Master Servicer or the Special Servicer,
as the case may be, to make Advances; and (v) the ownership, servicing or
management for others of any other mortgage loans or mortgaged property.
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through (g) of the
definition of "Specially Serviced Mortgage Loan".
"Single Certificate": For purposes of Section 4.02, a hypothetical
Certificate of any Class of Regular Certificates evidencing a $1,000
denomination.
"Special Servicer": Lennar Partners, Inc., a corporation organized under
the laws of the State of Florida, its successor in interest, or any successor
special servicer appointed as herein provided.
"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).
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"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 have occurred:
(a) the related Mortgagor shall have failed to make any Periodic
Payment, and such failure has continued unremedied for 45 days (or,
in the case of a Balloon Payment, if the Master Servicer receives
written evidence from an institutional lender of such lender's
binding commitment to refinance such Mortgage Loan and the related
Mortgagor continues to make monthly payments of principal and
interest in an amount at least equal to the Periodic Payment due on
the Due Date immediately preceding the scheduled maturity date, such
longer period (not to exceed 120 days) within which such refinancing
is expected to occur); or
(b) the Master Servicer shall have determined, in its good faith
reasonable judgment, based on communications with the related
Mortgagor, that a default in making a Periodic Payment is likely to
occur within 30 days and is likely to remain unremedied for at least
60 days (or, in the case of a Balloon Payment, if the Master
Servicer has received written evidence from an institutional lender
of such lender's binding commitment to refinance such Mortgage Loan
and if the Master Servicer reasonably expects the related Mortgagor
to continue to make monthly payments of principal and interest in an
amount at least equal to the Periodic Payment due on the Due Date
immediately preceding the scheduled maturity date, such longer
period (not to exceed 120 days) within which such refinancing is
expected to occur); or
(c) there shall have occurred, or the Master Servicer and the Special
Servicer determines there is likely to occur within 10 days, a
default (other than as described in clause (a) above) that
materially impairs the value of the Mortgaged Property as security
for the Mortgage Loan or otherwise materially adversely affects the
interests of Certificateholders (provided that with respect to any
Credit Lease Loan that the Master Servicer has actual knowledge of
any downgrade of the credit rating assigned to the related Tenant or
guarantor below "BB", such downgrade shall constitute such a
default) and that continues unremedied for the applicable grace
period under the terms of the Mortgage Loan (or, if no grace period
is specified, for 30 days); or
(d) 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,
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readjustment of debt, marshaling 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
(e) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling 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
(f) the related Mortgagor shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute,
make an assignment for the benefit of its creditors, or voluntarily
suspend payment of its obligations; or
(g) the Master Servicer shall have received notice of the commencement
of foreclosure or similar proceedings with respect to the related
Mortgaged Property;
provided, however, that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan:
(w) with respect to the circumstances described in clause (a) above,
when the related Mortgagor has made three consecutive full and
timely Periodic Payments (or in the case of a Semi-Annual Mortgage
Loan, two consecutive full and timely Periodic 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 (b), (d), (e)
and (f) above, when such circumstances cease to exist in the good
faith reasonable judgment of the Special Servicer and in accordance
with the Servicing Standard, but, with respect to any bankruptcy or
insolvency proceedings described in clauses (d), (e) and (f), no
later than the entry of an order or decree dismissing such
proceeding;
(y) with respect to the circumstances described in clause (c) above,
when such default is cured; and
(z) with respect to the circumstances described in clause (g) above,
when such proceedings are terminated;
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so long as at that time no circumstance identified in clauses (a) through (g)
above exists that would cause the Mortgage Loan to continue to be characterized
as a Specially Serviced Mortgage Loan.
"Standard & Poor's": 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, "Standard & Poor'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 in writing to the Trustee, the Master Servicer and
the Special Servicer, and specific ratings of Standard & Poor's Ratings Services
herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated.
"Startup Day": With respect to each of REMIC I, REMIC II, REMIC III, and
REMIC IV, the day designated as such in Section 10.01(c).
"State and Local Taxes": Taxes imposed by the states of New York,
Illinois, Delaware, Maryland and North Carolina and by any other state or local
taxing authorities as may, by notice to the Trustee, assert jurisdiction over
the trust fund or any portion thereof, or which, according to an Opinion of
Counsel addressed to the Trustee, have such jurisdiction.
"Stated Maturity Date": With respect to any Mortgage Loan, the Due Date
specified in the Mortgage Note (as in effect on the Closing Date) on which the
last payment of principal is due and payable under the terms of the Mortgage
Note (as in effect on the Closing Date), without regard to any change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20.
"Stated Principal Balance": With respect to any Mortgage Loan (and any
successor REO Loan), the Cut-off Date Balance of such Mortgage Loan (or, in the
case of a Qualified Substitute Mortgage Loan, the unpaid principal balance after
application of all principal payments due on or before the related date of
substitution, whether or not received), as permanently reduced on each
Distribution Date (to not less than zero) by (i) all payments (or advances in
lieu thereof) and other collections of principal of such Mortgage Loan (or
successor REO Loan) that are distributed (or, to the extent they had not been
applied to cover Additional Trust Fund Expenses, 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 or REO
Loan) during the related Collection Period. Notwithstanding the foregoing, if a
Liquidation Event occurs in respect of any Mortgage Loan or REO Property, then
the "Stated Principal Balance" of such Mortgage Loan or of the related REO Loan,
as the case may be, shall be zero commencing as of the Distribution Date in the
Collection Period next following the Collection Period in which such Liquidation
Event occurred.
"Subordinated Certificate": Any Class B, Class C, Class D, Class E, Class
IO-2, Class F, Class G, Class H, Class R-I, Class R-II, Class R-III or Class
R-IV Certificate.
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"Sub-Servicer": Any Person with which the Master Servicer or the Special
Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, 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.
"Substitution Shortfall Amount": With respect to a substitution pursuant
to Section 2.03(a) hereof, an amount equal to the excess, if any, of the
Purchase Price of the Mortgage Loan being replaced calculated as of the date of
substitution over the Stated Principal Balance of the related Qualified
Substitute Mortgage Loan as of the date of substitution. In the event that one
or more Qualified Substitute Mortgage Loans are substituted (at the same time)
for one or more deleted Mortgage Loans, the Substitution Shortfall Amount shall
be determined as provided in the preceding sentence on the basis of the
aggregate Purchase Prices of the Mortgage Loan or Mortgage Loans being replaced
and the aggregate Stated Principal Balances of the related Qualified Substitute
Mortgage Loan or Mortgage Loans.
"Successful Bidder": The meaning assigned to such term in Section 7.01(c).
"Tax Matters Person": With respect to each of the REMICs created
hereunder, the Person designated as the "tax matters person" of such REMIC in
the manner provided under Treasury Regulations Section 1.860F-4(d) and Temporary
Treasury Regulations Section 301.6231(a)(7)-1T, which Person shall be the
applicable Plurality Residual Certificateholder.
"Tax Returns": The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of each of REMIC I, REMIC II, REMIC III and REMIC IV (if any) due to
its classification as a REMIC under the REMIC Provisions and all other
information, reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service under any
applicable provisions of federal tax law or any other governmental taxing
authority under applicable State and Local Tax laws.
"Tenant": With respect to each Credit Lease, the lessee thereunder.
"Transfer": Any direct or indirect transfer, sale, pledge, hypothecation,
or other form of assignment of any Ownership Interest in a Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
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"Transition Date": The date specified as the Transition Date in the
Transition Date Supplement that is delivered following the satisfaction of the
conditions precedent set forth in Section 2.11(a).
"Transition Supplement": The Transition Supplement delivered by the
Depositor pursuant to Section 2.11(a), a form of which is attached as Exhibit F
hereto.
"Trust Fund": Collectively, (i) all of the assets of REMIC I, REMIC II and
REMIC III, and on and after the Transition Date, REMIC IV and (ii) any interest
payable on the Mortgage Loans which is attributable to any portion of a
Servicing Fee or Principal Recovery Fee that is deemed to be in excess of the
amount of such Servicing Fee or Principal Recovery Fee that constitutes
reasonable servicing compensation within the meaning of the REMIC Provisions.
"Trustee": NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, its successor in
interest, or any successor trustee appointed as herein provided.
"Trustee Fee": means, with respect to each Mortgage Loan and REO Loan for
any Distribution Date, an amount equal to one month's interest for the most
recently ended calendar month (calculated on a 30/360 Basis), accrued at the
Trustee Fee Rate on the Stated Principal Balance of such Mortgage Loan or REO
Loan, as the case may be, outstanding immediately following the prior
Distribution Date (or, in the case of the initial Distribution Date, as of the
Closing Date).
"Trustee Fee Rate": 0.002% per annum.
"Trustee Liability": As defined in Section 8.05(b).
"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 any relevant
jurisdiction.
"Underwriter": Each of the underwriters identified in the Prospectus
Supplement, or in each case, its successor in interest and the Initial Purchaser
under the Private Placement Memorandum.
"United States Person": A citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in or under
the laws of the United States, any State thereof or the District of Columbia
unless in the case of a partnership, Treasury Regulations are adopted that
provide otherwise, or an estate whose income from sources without the United
States is includible in gross income for United States federal income tax
purposes regardless of its connection with the conduct of a trade or business
within the United States, 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
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control all substantial decisions of the trust, all within the meaning of
Section 7701(a) (30) of the Code.
"Unrestricted Servicer Reports": Each of the Delinquent Loan Status
Report, Historical Loan Modification Report, Historical Loan Estimate Report,
REO Status Report and Loan Payoff Notification Report.
"USAP": The Uniform Single Attestation Program for Mortgage Bankers.
"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, 100% of the Voting Rights shall be allocated among the
Holders of the Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class
F, Class G and Class H Certificates in proportion to the respective Class
Principal Balances of their Certificates; provided that, solely for the purpose
of determining the Voting Rights of the Classes of Sequential Pay Certificates,
the aggregate Appraisal Reduction Amount (determined as set forth herein) shall
be treated as Realized Losses with respect to the calculation of the Certificate
Principal Balances thereof. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in standard
proportion to the Percentage Interests evidenced by their respective
Certificates. In addition, if either the Master Servicer or the Special Servicer
is the holder of any Certificate, neither of the Master Servicer or Special
Servicer, in its capacity as a Certificateholder, shall have Voting Rights with
respect to matters concerning compensation affecting the Master Servicer or the
Special Servicer.
"Watch List": As of each Determination Date a report, substantially in the
form of Exhibit P attached hereto, identifying each Mortgage Loan that is not a
Specially Serviced Mortgage Loan (i) with a Debt Service Coverage Ratio of less
than 1.05x, (ii) that has a Stated Maturity Date occurring in the next sixty
days, (iii) that is delinquent in respect of its real estate taxes, (iv) for
which any outstanding Advances exist, (v) that has been a Specially Serviced
Mortgage Loan in the past 90 days, (vi) for which the Debt Service Coverage
Ratio has decreased by more than 10% in the prior 12 months, (vii) for which any
lease relating to more than 25% of the related Mortgaged Property has expired,
been terminated, is in default or will expire within the next three months,
(viii) that is late in making its Periodic Payment three or more times in the
preceding twelve months, (ix) with material deferred maintenance at the related
Mortgaged Property or (x) that is 30 or more days delinquent.
"Weighted Average REMIC I Remittance Rate": With respect to any
Distribution Date, the rate per annum equal to the weighted average, expressed
as a percentage and rounded to six decimal places, of the respective REMIC I
Remittance Rates applicable to the REMIC I Regular Interests for such
Distribution Date, weighted on the basis of the respective REMIC Principal
Balances of such REMIC I Regular Interests outstanding immediately prior to such
Distribution Date.
"Yield Maintenance Charge": Payments paid or payable, as the context
requires, on a Mortgage Loan as the result of a Principal Prepayment thereon,
not otherwise due thereon in respect of principal or interest, which have been
calculated (based on Scheduled
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Payments on such Mortgage Loan) to compensate the holder for reinvestment losses
based on the value of an interest rate index at or near the time of prepayment.
Any other prepayment premiums, penalties and fees not so calculated will not be
considered "Yield Maintenance Charges." In the event that a Yield Maintenance
Charge shall become due for any particular Mortgage Loan, the Master Servicer
shall be required to follow the terms and provisions contained in the applicable
Mortgage Note, provided, however, in the event the particular Mortgage Note
shall not specify the U.S. Treasuries which shall be used in determining the
discount rate or the reinvestment yield to be applied in such calculation, the
Master Servicer shall be required to use those U.S. Treasuries which shall
generate the lowest discount rate or reinvestment yield for the purposes
thereof. Accordingly if either no U.S. Treasury issue, or more than one U.S.
Treasury issue, shall coincide with the term over which the Yield Maintenance
Charge shall be calculated (which depending on the applicable Mortgage Note is
based on the remaining average life of the Mortgage Loan or the actual term
remaining through the Maturity Date), the Master Servicer shall use the U.S.
Treasury whose reinvestment yield is the lowest, with such yield being based on
the bid price for such issue as published in The Wall Street Journal on the date
that is fourteen (14) days prior to the date that the Yield Maintenance Charge
shall become due and payable (or, if such bid price is not published on that
date, the next preceding date on which such bid price is so published) and
converted to a monthly compounded nominal yield. The monthly compounded nominal
yield ("MEY") is derived from the reinvestment yield or discount rate and shall
be defined as MEY = (12X [{(1+"BEY"/2)^1/6}-1]) X 100 where BEY is defined as
the U.S. Treasury Reinvestment Yield which is in decimal form and not in
percentage, and 1/6 is the exponential power to which a portion of the equation
is raised. For example, using a BEY of 5.50%, the MEY = (12 X [{(1+
.055/2)^0.16667}-1]) X 100 where .055 is the decimal version of the percentage
5.5% and 0.16667 is the decimal version of the exponential power. The MEY in the
above calculation is 5.438%.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery hereof,
does hereby assign, sell, transfer, set over and otherwise convey to the
Trustee, without recourse, for the benefit of the Certificateholders (and for
the benefit of the other parties to this Agreement as their respective interests
may appear) all the right, title and interest of the Depositor, in, to and under
(i) the Mortgage Loans, (ii) the Mortgage Loan Purchase Agreement and (iii) all
other assets included or to be included in the Trust Fund. Such assignment
includes all interest and principal received or receivable on or with respect to
the Mortgage Loans and due after the Cut-off Date (and in the case of
Semi-Annual Mortgage Loans, excluding interest accrued thereon before the
Cut-off Date). The transfer of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and, notwithstanding Section 11.07, is
intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to Section
2.01(a) above, the Depositor shall direct, and hereby represents and warrants
that it has directed, the Mortgage Loan Seller, pursuant to the Mortgage Loan
Purchase Agreement, to deliver to and deposit with, or cause to be delivered to
and deposited with, the Trustee or a Custodian appointed thereby (with a copy to
the Master Servicer and the Special Servicer), on or before the Closing Date,
the Mortgage File for each Mortgage Loan so assigned. None of the Trustee, any
Custodian, the Master Servicer or the Special Servicer shall be liable for any
failure by the Mortgage Loan Seller or the Depositor to comply with the document
delivery requirements of the Mortgage Loan Purchase Agreement and this Section
2.01 (b).
(c) The Trustee shall, at the Depositor's expense and direction, as to
each Mortgage Loan, promptly (and in any event within 45 days following the
later of the Closing Date or the delivery of all assignments and UCC Financing
Statements to the Trustee) 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 and to the extent timely delivered to the
Trustee in final, recordable form, each assignment of Mortgage, assignment of
Assignment of Leases and any other recordable documents relating to the Mortgage
Loan, in favor of the Trustee referred to in clause (iv) of the definition of
"Mortgage File" and each UCC-2 and UCC-3 assignment in favor of the Trustee and
so delivered to the Trustee and referred to in clause (viii) of the definition
of "Mortgage File." Each such assignment, UCC-2 and UCC-3 shall reflect that it
should be returned by the public recording office to the Trustee or its designee
following recording, and each such UCC-2 and UCC-3 assignment shall reflect that
the file copy thereof should be returned to the Custodian or its designee
following filing; provided, that in those instances where the public recording
office retains the original assignment of Mortgage or assignment of Assignment
of Leases, the Trustee shall obtain therefrom a certified copy of the recorded
original or other official evidence of recording. If
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any such document or instrument is lost or returned unrecorded or unfiled, as
the case may be, because of a defect therein, the Trustee shall direct the
Mortgage Loan Seller pursuant to the Mortgage Loan Purchase Agreement promptly
to prepare or cause to be prepared a substitute therefor or cure such defect, as
the case may be, and thereafter the Trustee shall upon receipt thereof cause the
same to be duly recorded or filed, as appropriate.
(d) All documents and records in the possession of the Mortgage Loan
Seller that relate to the Mortgage Loans and that are not required to be a part
of a Mortgage File in accordance with the definition thereof, together all
Escrow Payments and Reserve Accounts in the possession thereof, shall be
delivered to the Master Servicer or such other Person as may be directed by the
Master Servicer (at the expense of the Mortgage Loan Seller) on or before the
Closing Date and shall be held by the Master Servicer on behalf of the Trustee
in trust for the benefit of the Certificateholders; provided, however, the
Master Servicer shall have no responsibility for holding documents created or
maintained by the Special Servicer hereunder and not delivered to the Master
Servicer.
(e) In connection with the Depositor's assignment pursuant to Section
2.01(a) above, the Depositor shall deliver to the Custodian and the Master
Servicer on or before the Closing Date a copy of a fully executed counterpart of
the Mortgage Loan Purchase Agreement, as in full force and effect on the Closing
Date.
SECTION 2.02. Acceptance of the Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
acknowledges receipt of the Depositor's assignment to it of the Depositor's
right, title and interest in the assets that constitute the Trust Fund, and
further acknowledges receipt by it or a Custodian on its behalf, subject to the
proviso in the definition of "Mortgage File" and the provisions of Section 2.01
and subject to the further review provided for in Section 2.02(b), of (i) the
Mortgage File delivered to it for each Mortgage Loan and (ii) a copy of a fully
executed counterpart of the Mortgage Loan Purchase Agreement, all in good faith
and without notice of any adverse claim, and declares that it or a Custodian on
its behalf holds and will hold such documents and the other documents received
by it that constitute portions of the Mortgage Files, and that it holds and will
hold the Mortgage Loans and other assets included in the Trust Fund, in trust
for the exclusive use and benefit of all present and future Certificateholders.
The Custodian hereby certifies to each of the Depositor, the Master Servicer,
the Special Servicer, the Trustee and the Mortgage Loan Seller, that except as
identified in the Schedule of Exceptions, a form of which is attached hereto as
Exhibit C, a copy of which shall have been delivered by the Custodian on or
prior to the Closing Date to each of the Depositor, the Master Servicer, the
Special Servicer, the Trustee and the Mortgage Loan Seller, without regard to
the proviso in the definition of "Mortgage File", each of the documents
specified in clause (i) of the definition of Mortgage File are in its
possession. In addition, within forty-five (45) Business Days after the Closing,
the Trustee or the Custodian on its behalf will review the Mortgage Files and
certify to each of the Depositor, the Master Servicer, the Special Servicer and
the Mortgage Loan Seller that, with respect to each Mortgage Loan listed in the
Mortgage Loan Schedule, except as specifically identified in the Schedule of
Exceptions to Mortgage File
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Delivery in substantially the form annexed hereto as Exhibit C, (i) without
regard to the proviso in the definition of "Mortgage File," all documents
specified in clauses (i) through (v) and (vii), and to the extent provided in
the related Mortgage File and actually known by a Responsible Officer of the
Trustee to be required, clauses (vi) and (viii) of the definition of "Mortgage
File" are in its possession, (ii) all documents delivered or caused to be
delivered by the Mortgage Loan Seller constituting the related Mortgage File
have been reviewed by it and appear regular on their face and appear to 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 for
such Mortgage Loan with respect to the items specified in clauses (v) and
(vi)(B) of the definition of "Mortgage Loan Schedule" is correct.
Notwithstanding the above, the Custodian may deliver a revised Schedule of
Exceptions to Mortgage File Delivery to the Depositor within 45 Business Days
after the Closing Date. Such revised schedule shall be treated as if it was
attached hereto as Exhibit C.
(b) None of the Trustee, the Master Servicer, the Special Servicer or any
Custodian is under any duty or obligation 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, enforceable, in recordable form, sufficient or appropriate
for the represented purpose or that they are other than what they purport to be
on their face.
SECTION 2.03. Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Document Defects and Breaches of Representations and
Warranties.
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been properly executed, is
missing, contains information that does not conform in any material respect with
the corresponding information set forth in the Mortgage Loan Schedule, or does
not appear to be regular on its face (each, a "Document Defect"), or discovers
or receives notice of a breach of any representation or warranty relating to any
Mortgage Loan set forth in the Mortgage Loan Purchase Agreement (a "Breach"),
that in either case materially and adversely affects the interests of the
Certificateholders or the value of the affected Mortgage Loans, the party
discovering such Document Defect or Breach shall give written notice to the
other parties hereto, to the Majority Subordinate Certificateholder and to the
Rating Agencies of such Document Defect or Breach. Promptly upon becoming aware
of any such Document Defect or Breach (including through such written notice
provided by any party hereto or the Majority Subordinate Certificateholder as
provided above), the Master Servicer shall request in writing that the Mortgage
Loan Seller (i) cure such Document Defect or Breach, as the case may be, in
accordance with Section 3(c) of the Mortgage Loan Purchase Agreement, (ii)
repurchase the affected Mortgage Loan in accordance with Section 3(c) of the
Mortgage Loan Purchase Agreement or (iii) substitute a Qualified Substitute
Mortgage Loan for such affected Mortgage Loan and pay the Master Servicer for
deposit into the Certificate Account any Substitution Shortfall Amount in
connection therewith in accordance with Sections 3(c) and 3(d) of the Mortgage
Loan Purchase Agreement. For a period of two years from the Closing Date, so
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long as there remains any Mortgage File as to which there is any uncured
Document Defect and so long as the Mortgage Loan Seller shall provide the
Officer's Certificate pursuant to Section 3(c) of the Mortgage Loan Purchase
Agreement, the Trustee shall on a quarterly basis prepare and deliver to the
other parties a written report as to the status of such uncured Document
Defects. If the affected Mortgage Loan is to be repurchased or substituted, the
Master Servicer shall designate the Certificate Account as the account to which
funds in the amount of the Purchase Price or the Substitution Shortfall Amount,
as applicable, are to be wired. Any such repurchase or substitution of a
Mortgage Loan shall be on a whole loan, servicing released basis.
Notwithstanding the foregoing, the delivery of a commitment to issue a policy of
lender's title insurance in lieu of the delivery of the actual policy of
lender's title insurance shall not be considered a Document Defect with respect
to any Mortgage File if such actual policy of insurance is delivered to the
Trustee or a Custodian on its behalf not later than the 90th day following the
Closing Date.
(b) In connection with any repurchase or substitution of one or more
Mortgage Loans contemplated by this Section 2.03, upon receipt of a Request for
Release of a Servicing Officer of the Master Servicer certifying as to the
receipt of the applicable Purchase Price(s) in the Certificate Account (in the
case of any such repurchase) or the receipt of the applicable Substitution
Shortfall Amount(s) in the Certificate Account and upon the delivery of the
Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute
Mortgage Loan(s) to the Custodian and the Master Servicer, respectively (in the
case of any such substitution), (i) the Trustee shall execute and deliver such
endorsements and assignments, in each case without recourse, representation or
warranty, as shall be necessary to vest in the Mortgage Loan Seller the legal
and beneficial ownership of each repurchased Mortgage Loan or deleted Mortgage
Loan, as applicable, being released pursuant to this Section 2.03, and (ii) the
Trustee, the Custodian, the Master Servicer, and the Special Servicer shall each
tender to the Mortgage Loan Seller, upon delivery to each of them of a receipt
executed by the Mortgage Loan Seller, all portions of the Mortgage File and
other documents pertaining to each such Mortgage Loan possessed by it and the
Master Servicer and the Special Servicer shall release to the Mortgage Loan
Seller any Escrow Payments and Reserve Funds held by it in respect of such
repurchased Mortgage Loan; provided, that such tender by the Trustee or the
Custodian shall be conditioned upon its receipt from the Master Servicer or the
Special Servicer of a Request for Release. Thereafter, the Trustee, the
Custodian, the Master Servicer and the Special Servicer shall have no further
responsibility with regard to the related repurchased Mortgage Loan(s) or
deleted Mortgage Loan(s), as applicable, and the related Mortgage File(s) and
Servicing File(s). The Master Servicer shall, and is hereby authorized and
empowered by the Trustee to, prepare, execute and deliver in its own name, on
behalf of the Certificateholders and the Trustee or any of them, the
endorsements and assignments contemplated by this Section 2.03, and the Trustee
shall execute any powers of attorney that are prepared and delivered to the
Trustee by the Master Servicer and are necessary to permit the Master Servicer
to do so. The Master Servicer shall indemnify the Trustee for any reasonable
costs, fees, liabilities and expenses incurred by the Trustee in connection with
the negligent or willful misuse by the Master Servicer of such powers of
attorney.
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(c) No substitution of a Qualified Substitute Mortgage Loan or Loans may
be made in any calendar month after the Determination Date for such month.
Periodic Payments due with respect to any Qualified Substitute Mortgage Loan
after the related date of substitution shall be part of REMIC I. No substitution
of a Qualified Substitute Mortgage Loan for a deleted Mortgage Loan shall be
permitted under this Agreement if after such substitution, the aggregate of the
Stated Principal Balances of all Qualified Substitute Mortgage Loans which have
been substituted for deleted Mortgage Loans exceeds 10% of the aggregate Cut-off
Date Balance of all the Mortgage Loans. Periodic Payments due with respect to
any Qualified Substitute Mortgage Loan on or prior to the related date of
substitution shall not be part of the Trust Fund or REMIC I and will (to the
extent received by the Master Servicer) be remitted by the Master Servicer to
the Mortgage Loan Seller promptly following receipt.
(d) The Mortgage Loan Purchase Agreement provides the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect or Breach with respect to the
Mortgage Loans purchased by the Depositor thereunder.
SECTION 2.04. Representations and Warranties of Depositor.
(a) The Depositor hereby represents and warrants to the Trustee, for its
own benefit and the benefit of the Certificateholders, and to the Master
Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of North Carolina.
(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,
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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 that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or that, 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) Provided that the transfer of the Mortgage Loans from the
Mortgage Loan Seller to the Depositor under the Mortgage Loan Purchase
Agreement is a sale and not a secured loan, immediately prior to the
transfer of the Mortgage Loans to the Trust Fund pursuant to this
Agreement, (A) the Depositor had good and marketable title to, and was the
sole owner and holder of, each Mortgage Loan; and (B) the Depositor has
full right and authority to sell, assign and transfer the Mortgage Loans
and all servicing rights pertaining thereto or if the transfer of the
Mortgage Loans from the Mortgage Loan Seller to the Depositor under the
Mortgage Loan Purchase Agreement is a secured loan and not a sale,
immediately prior to the transfer of the Mortgage Loans to the Trust Fund
pursuant to this Agreement (A) the Depositor had a perfected security
interest in each Mortgage Loan and (B) the Depositor has full right and
authority to pledge each Mortgage Loan to the Trust Fund for the benefit
of the Certificateholders.
(ix) The Depositor is transferring the Mortgage Loans to the Trust
Fund free and clear of any liens, pledges, charges and security interests.
(b) The representations and warranties of the Depositor set forth in
Section 2.04(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 Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing
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representations and warranties, the party discovering such breach shall give
prompt written notice thereof to the other parties.
SECTION 2.05. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests.
The Trustee hereby acknowledges the assignment to it of the assets
included in the Trust Fund. Concurrently with such assignment and in exchange
therefor, (a) the Trustee agrees to hold the portion of each of the Mortgage
Loans included in REMIC I, and (b) the Certificate Registrar, pursuant to the
written request of the Depositor executed by an officer of the Depositor, has
executed, and the Authenticating Agent has 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 (as
holder of the REMIC I Regular Interests) 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 evidenced or
constituted by the Class R-I Certificates and the REMIC I Regular Interests,
shall be as set forth in this Agreement.
SECTION 2.06. Conveyance of REMIC I Regular Interests; Acceptance of REMIC
II by Trustee.
The Depositor, as of the Closing Date, and concurrently with the execution
and delivery of this Agreement, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Holders of the Class R-II
Certificates and REMIC III as the holder of the REMIC II Regular Interests. The
Trustee acknowledges the assignment to it of the REMIC I Regular Interests and
declares that it holds and will hold the same in trust for the exclusive use and
benefit of all present and future Holders of the Class R-II Certificates and
REMIC III as the holder of the REMIC II Regular Interests.
SECTION 2.07. Execution, Authentication and Delivery of Class R-II
Certificates.
The Trustee pursuant to the written request of the Depositor executed by
an officer of the Depositor, has executed, as the Certificate Registrar,
authenticated, as the Authenticating Agent, and delivered to or upon the order
of the Depositor, the Class R-II Certificates in authorized denominations.
SECTION 2.08. Conveyance of REMIC II Regular Interests; Acceptance of
REMIC III by Trustee.
The Depositor, as of the Closing Date, and concurrently with the execution
and delivery of this Agreement, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the REMIC II Regular
Interests to the Trustee for the benefit of the
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respective Holders of the Class R-III Certificates and the REMIC III Regular
Interests. The Trustee acknowledges the assignment to it of the REMIC II Regular
Interests and declares that it holds and will hold the same in trust for the
exclusive use and benefit of all present and future Holders of the Class R-III
Certificates and the REMIC III Regular Interests.
SECTION 2.09. Execution, Authentication and Delivery of Class R-III
Certificates.
The Trustee, pursuant to the written request of the Depositor executed by
an officer of the Depositor, has executed, as the Certificate Registrar,
authenticated, as the Authenticating Agent, and delivered to or upon the order
of the Depositor, the Class R-III Certificates in authorized denominations.
SECTION 2.10. Execution, Authentication and Delivery of Regular
Certificates.
Concurrently with the assignment to it of the REMIC II Regular Interests
and in exchange therefor, the Trustee, as the Certificate Registrar, has
executed, and the Trustee, as the Authenticating Agent, has authenticated and
delivered to or upon the order of the Depositor, the Regular Certificates in
authorized denominations. From the Closing Date until immediately prior to the
Transition Date, the Certificates will evidence that portion of the entire
beneficial ownership of REMIC III which is not represented by the Class R-III
Certificates. The rights of the holders of the respective Classes of Regular
Certificates to receive distributions from the proceeds of REMIC III from the
Closing Date until immediately prior to the Transition Date in respect of their
Regular Certificates, and all ownership interests evidenced or constituted by
the respective Classes of Regular Certificates in such distributions, shall be
as set forth in this Agreement.
SECTION 2.11. Execution, Authentication and Delivery of REMIC IV Regular
Interests and Class R-IV Certificates.
(a) The transactions contemplated by the Transition Supplement are subject
to the satisfaction of each of the following conditions precedent:
(i) the Depositor shall deliver an officer's certificate that it or
an Affiliate of the Depositor is the Holder of 100% of the interests of
each of the Class A-1 Certificates, Class A-2 Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates and Class IO-1 Certificates;
(ii) the Depositor shall deliver an executed and completed
Transition Supplement;
(iii) the Trustee, pursuant to the written request of the Depositor
executed by an officer of the Depositor, shall execute, as the Certificate
Registrar, authenticate, as the Authenticating Agent, and deliver to or
upon the
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order of the Depositor, the Class A-1, Class A-2, Class B, Class C, Class
D, Class E, Class IO-1 and Class R-IV Certificates in authorized
denominations;
(iv) the Depositor shall cause to be delivered to the Trustee, an
Opinion of Counsel, addressed to the Trustee, to the effect that the
transactions contemplated by the Transition Supplement and this Agreement
will not result in the imposition of taxes on "prohibited transactions" of
REMIC I, REMIC II, REMIC III or REMIC IV, as defined in Section 860F of
the Code, or cause REMIC I, REMIC II, REMIC III or REMIC IV to fail to
qualify as a REMIC at any time that any Certificates are outstanding;
(v) each Rating Agency shall deliver written confirmation that the
delivery of the Transition Supplement and the transactions contemplated
thereby will not result in the qualification, downgrading or withdrawal of
the ratings then assigned to the Certificates;
(vi) each Rating Agency shall have received an Opinion of Counsel,
in form and substance satisfactory to such Rating Agency, concerning
certain insolvency matters with respect to the Mortgage Loan Seller and
the Depositor; and
(vii) the Depositor shall cause an Underwriter to deliver to the
REMIC Administrator a certificate that specifies, in such Underwriter's
reasonable estimation, the fair market value of each Class of the Regular
Certificates as of the Transition Date.
(b) On the Transition Date and upon satisfaction of each of the conditions
precedent set forth in Section 2.11(a), each Holder of a Regular Certificate
concurrently with the execution and delivery of the Transition Supplement, shall
thereby assign to the Trustee without recourse for the benefit of REMIC IV all
the right, title and interest of such Holder in and to the REMIC III Regular
Interest which is then represented by such Regular Certificate. The Trustee
shall thereupon acknowledge the assignment to it of such REMIC III Regular
Interests and declare 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-IV
Certificates and the Regular Certificates. On and after the Transition Date,
each Class of Regular Certificates shall no longer evidence an interest in the
Corresponding REMIC III Regular Interest, but shall evidence an interest in the
Corresponding REMIC IV Regular Interest and Holders of the Regular Certificates
shall be entitled to distributions in respect of the related REMIC IV Regular
Interest as set forth in this Agreement and the Transition Supplement. On the
Transition Date, the Trustee, at the direction of the Holder of the Class A-1
Certificates, Class A-2 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates and Class IO-1
Certificates, shall exchange each such Class of Certificates for the
corresponding Class of Registered Certificates and shall register the
Corresponding Class of Registered Certificates with the applicable Pass-Through
Rate specified in the Transition Supplement in such names and denominations as
may be requested by such Holder.
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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 each is obligated to service and administer
pursuant to this Agreement on behalf of the Trustee, for the benefit of the
Certificateholders, in accordance with any and all applicable laws, the terms of
this Agreement and the terms of 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 that are not Specially
Serviced Mortgage Loans, and (ii) the Special Servicer shall service and
administer each Specially Serviced Mortgage Loan and REO Property and shall
render such services with respect to all Mortgage Loans and REO Properties as
are specifically provided for herein. All references herein to the respective
duties of the Master Servicer and the Special Servicer, and to the areas in
which they may exercise discretion, shall be subject to Section 3.21.
(b) Subject to Section 3.01(a) and Section 6.11, the Master Servicer and
the Special Servicer each shall have full power and authority, acting alone, to
do or cause to be done any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing, each of the Master Servicer and the Special
Servicer, in its own name, with respect to each of the Mortgage Loans it is
obligated to service hereunder, is hereby authorized and empowered by the
Trustee to execute and deliver, on behalf of the Certificateholders and the
Trustee or any of them, (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and related collateral; (ii) in accordance
with the Servicing Standard and subject to Section 3.20 and Section 6.11, 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 the Master Servicer or the Special
Servicer, promptly execute any limited powers of attorney and other documents
furnished by the Master Servicer or the Special Servicer that are 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 the 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 venture, partner or
agent.
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SECTION 3.02. Collection of Mortgage Loan Payments.
(a) Each of the Master Servicer or the Special Servicer shall undertake
reasonable efforts to collect all payments required 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, follow
such collection procedures in accordance with the Servicing Standard. Consistent
with the foregoing, the Special Servicer, with regard to a Specially Serviced
Mortgage Loan, or the Master Servicer, with regard to a Mortgage Loan that is
not a Specially Serviced Mortgage Loan, may waive any Penalty Interest or late
payment charge in connection with any payment on a Mortgage Loan.
(b) All amounts collected in respect of any Mortgage Loan in the form of
payments from Mortgagors, Liquidation Proceeds (insofar as such Liquidation
Proceeds are of the nature described in clauses (i) through (iii) of the
definition thereof) or Insurance Proceeds shall be applied to either amounts due
and owing under the related Mortgage Note and Mortgage (including, without
limitation, for principal and accrued and unpaid interest) in accordance with
the express provisions of the related Mortgage Note and Mortgage or, if required
pursuant to the express provisions of the related Mortgage, or as determined by
the Master Servicer or Special Servicer in accordance with the Servicing
Standard, to the repair or restoration of the related Mortgaged Property, and,
in the absence of such express provisions, shall be applied for purposes of this
Agreement: first, as a recovery of any related and unreimbursed Advances plus
interest accrued thereon; second, as a recovery of accrued and unpaid interest
at the related Mortgage Rate on such Mortgage Loan, to the extent such amounts
have not been previously advanced; third, as a recovery of principal of such
Mortgage Loan then due and owing, to the extent such amounts have not been
previously advanced, including, without limitation, by reason of acceleration of
the Mortgage Loan following a default thereunder; fourth, in accordance with the
normal servicing practices of the Master Servicer, as a recovery of any other
amounts then due and owing under such Mortgage Loan, including, without
limitation, Prepayment Premiums, Yield Maintenance Charges and Penalty Interest;
and fifth, as a recovery of any remaining principal of such Mortgage Loan not
then due and owed to the extent of its entire remaining unpaid principal
balance. All amounts collected on any Mortgage Loan in the form of Liquidation
Proceeds of the nature described in clauses (iv) through (vi) of the definition
thereof shall be deemed to be applied: first, as a recovery of any related and
unreimbursed Advances plus interest accrued thereon; second, as a recovery of
accrued and unpaid interest at the related Mortgage Rate on such Mortgage Loan
to but not including the Due Date in the Collection Period of receipt, to the
extent such amounts have not been previously advanced; and third, as a recovery
of principal, to the extent such amounts have not been previously advanced, of
such Mortgage Loan to the extent of its entire unpaid principal balance. No such
amounts shall be applied to the items constituting additional servicing
compensation as described in the first sentence of Section 3.11(b) or 3.11(d)
unless and until all principal and interest then due and payable on such
Mortgage Loan has been collected. Amounts collected on any REO Loan shall be
deemed to be applied in accordance with the definition thereof. The provisions
of this paragraph with respect to the application of amounts collected on any
Mortgage Loan shall not alter in any way the right of the Master Servicer, the
Special Servicer or any other Person to receive
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payments from the Certificate Account as set forth in clauses (ii) through (xiv)
of Section 3.05(a) from amounts so applied.
(c) Within 30 days after the Closing Date, the Master Servicer shall
notify the Lease Enhancement Policy Insurer and RVI Policy Insurer that (i) both
the Master Servicer and the Special Servicer shall be sent notices under each
Lease Enhancement Policy and RVI Policy and (ii) Norwest Bank Minnesota,
National Association, as trustee for the registered holders of the First Union
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, FUNB
Series 1999-C1, respectively, shall be the loss payee under each RVI Policy and
shall be named the insured party under each Lease Enhancement Policy. In the
event that the Master Servicer has actual knowledge of an Insured Event under
any Lease Enhancement Policy or RVI Policy, the Master Servicer shall notify the
Special Servicer thereof within three Business Days after learning of such
event. The Special Servicer shall prepare and file a "proof of loss" form with
the Lease Enhancement Policy Insurer or the RVI Policy Insurer, as the case may
be, within five Business Days after receiving notice or obtaining actual
knowledge of any Insured Event under the related policy and shall diligently
process any claims under such policy in accordance with the Servicing Standard.
The Special Servicer will abide by the terms and conditions relating to
enforcing claims and monitor the dates by which any claim or action must be
taken (including delivering any notices to the RVI Policy Insurer and Lease
Enhancement Policy Insurer or performing any actions required under each policy)
under each RVI Policy and Lease Enhancement Policy to realize the full value of
such RVI Policy and Lease Enhancement Policy for the benefit of the
Certificateholders. The Special Servicer shall give notice to the Master
Servicer of any claim made under any Lease Enhancement Policy and RVI Policy and
of any Policy Termination Event of which the Master Servicer does not already
have notice.
(d) In the event that the Master Servicer receives notice of any Policy
Termination Event, the Master Servicer shall, within three Business Days after
receipt of such notice, notify the Special Servicer and the Trustee of such
Policy Termination Event in writing. Upon receipt of such notice, the Special
Servicer shall, notwithstanding that the servicing of the related Mortgage Loan
may not have been transferred to the Special Servicer in accordance with Section
3.21 hereof, address such Policy Termination Event in accordance with the
Servicing Standard. Any legal fees incurred in connection with a resolution of a
Policy Termination Event shall be paid by the Special Servicer as a Servicing
Advance or if such advance is deemed to be a Nonrecoverable Advance such fees
shall be reimbursable to it as an Additional Trust Fund Expense from the
Certificate Account pursuant to Section 3.05(a).
(e) Within 30 days after the Closing Date, the Master Servicer shall
notify each provider of a letter of credit for each Mortgage Loan identified as
having a letter of credit on the Mortgage Loan Schedule, that the Master
Servicer or the Special Servicer on behalf of the Trustee for the benefit of the
Certificateholders shall be the beneficiary under each such letter of credit.
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SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Mortgage Loans, establish and
maintain one or more accounts (the "Servicing Accounts"), into which all Escrow
Payments shall be deposited and retained. Each Servicing Account shall be an
Eligible Account. Withdrawals of amounts so collected from a Servicing Account
may be made (to the extent amounts have been escrowed for such purpose) only to:
(i) effect payment of items for which Escrow Payments were collected and
comparable items; (ii) reimburse the Master Servicer or the Trustee for any
Servicing Advances; (iii) refund to Mortgagors any sums as may be determined to
be overages; (iv) pay interest, if required and as described below, to
Mortgagors on balances in the Servicing Account; (v) pay itself interest and
investment income on balances in the Servicing Account as described in Section
3.06(b), if and to the extent not required by law or the terms of Mortgage Loan
to be paid to the Mortgagor; or (vi) clear and terminate the Servicing Account
at the termination of this Agreement in accordance with Section 9.01. To the
extent permitted by law or the applicable Mortgage Loan, funds in the Servicing
Accounts may be invested only in Permitted Investments in accordance with the
provisions of Section 3.06. The Master Servicer shall pay or cause to be paid to
the Mortgagors interest, if any, earned on the investment of funds in Servicing
Accounts maintained thereby, if required by law or the terms of the related
Mortgage Loan. If the Master Servicer shall deposit in a Servicing Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from such Servicing Account, any provision herein to the contrary
notwithstanding. The Servicing Accounts shall not be considered part of the
segregated pool of assets constituting REMIC I, REMIC II, REMIC III or REMIC IV
(if any).
(b) The Master Servicer shall, as to all Mortgage Loans, (i) maintain
accurate records with respect to the related Mortgaged Property reflecting the
status of real estate taxes, assessments and other similar items that are or may
become a lien thereon and the status of insurance premiums and any ground rents
payable in respect thereof 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 and, in any event, prior to the institution of foreclosure or similar
proceedings with respect to the related Mortgaged Property for nonpayment of
such items. For purposes of effecting any such payment for which it is
responsible, 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,
the Master Servicer shall, as to all Mortgage Loans, use reasonable efforts
consistent with the Servicing Standard to enforce the requirement of the related
Mortgage that the Mortgagor make payments in respect of such items at the time
they first become due, and, in any event, prior to the institution of
foreclosure or similar proceedings with respect to the related Mortgaged
Property for nonpayment of such items.
(c) The Master Servicer shall, as to all Mortgage Loans, make a Servicing
Advance with respect to the related Mortgaged Property in an amount equal to all
such funds
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as are necessary for the purpose of effecting the payment of (i) real estate
taxes, assessments, penalties and other similar items, (ii) ground 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 Master Servicer shall not
be obligated to make any Servicing Advance that would, if made, constitute a
Nonrecoverable Servicing Advance. All such Servicing 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, if
applicable, ground rents on or in respect of such Mortgaged Properties shall,
for purposes of this Agreement, including, without limitation, the Paying
Agent's calculation of monthly distributions to Certificateholders, be added to
the unpaid Stated Principal Balances of the related Mortgage Loans,
notwithstanding that the terms of such Mortgage Loans so permit. The foregoing
shall in no way limit the Master Servicer's ability to charge and collect from
the Mortgagor such costs together with interest thereon.
The Special Servicer shall give the Master Servicer and the Trustee not
less than five Business Days' notice with respect to Servicing Advances to be
made on any Specially Serviced Mortgage Loan, before the date on which the
Master Servicer is required to make any Servicing Advance with respect to a
given Mortgage Loan or REO Property; provided, however, that only two Business
Days' notice shall be required in respect of Servicing Advances required to be
made on an urgent or emergency basis (which may include, without limitation,
Servicing Advances required to make tax or insurance payments). In addition, the
Special Servicer shall provide the Master Servicer and the Trustee with such
information in its possession as the Master Servicer or the Trustee, as
applicable, may reasonably request to enable the Master Servicer or the Trustee,
as applicable, to determine whether a requested Servicing Advance would
constitute a Nonrecoverable Servicing Advance. Any request by the Special
Servicer that the Master Servicer make a Servicing Advance shall be deemed to be
a determination by the Special Servicer that such requested Servicing Advance is
not a Nonrecoverable Servicing Advance, and the Master Servicer shall be
entitled to conclusively rely on such determination. On the fourth Business Day
before each Distribution Date, the Special Servicer shall report to the Master
Servicer the Special Servicer's determination as to whether any Servicing
Advance previously made with respect to a Specially Serviced Mortgage Loan or
REO Loan is a Nonrecoverable Servicing Advance. The Master Servicer shall be
entitled to conclusively rely on such a determination.
If the Master Servicer or Special Servicer is required under any provision
of this Agreement (including, but not limited to, this Section 3.03(c)) to make
a Servicing Advance, but neither does so within 15 days after such Advance is
required to be made, the Trustee shall, if a Responsible Officer of the Trustee
has actual knowledge of such failure on the part of the Master Servicer or
Special Servicer, as the case may be, give written notice of such failure, as
applicable, to the Master Servicer or the Special Servicer. If such Servicing
Advance is not made by the Master Servicer or the Special Servicer within three
Business Days after such notice then (subject to a determination that such
Servicing Advance would not be a Nonrecoverable Servicing Advance) the Trustee
shall make such Servicing Advance. Any
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failure by the Master Servicer or the Special Servicer to make a Servicing
Advance hereunder shall constitute an Event of Default by the Master Servicer or
the Special Servicer, as the case may be, subject to and as provided in Section
7.01.
(d) In connection with its recovery of any Servicing Advance from the
Certificate Account pursuant to Section 3.05(a), each of the Master Servicer and
the Trustee shall be entitled to receive, out of any amounts then on deposit in
the Certificate Account, any unpaid interest at the Reimbursement Rate in effect
from time to time, compounded annually, accrued on the amount of such Servicing
Advance (to the extent made from its own funds) from the date made to but not
including the date of reimbursement such interest to be payable: (i) out of late
payment charges and Penalty Interest collected on or in respect of any Mortgage
Loan or REO Property during the same Collection Period in which such Servicing
Advance is reimbursed; and (ii) to the extent that such late payment charges and
Penalty Interest are insufficient, but only after the related Advance has been
reimbursed pursuant to this Agreement, out of general collections on the
Mortgage Loans and REO Properties on deposit in the Certificate Account. The
Master Servicer shall reimburse itself or the Trustee, as appropriate and in
accordance with Section 3.05(a), for any Servicing Advance as soon as
practicable after funds available for such purpose are deposited in the
Certificate Account.
(e) The determination by the Master Servicer that it has made a
Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, shall be made in
accordance with the Servicing Standard and shall be evidenced by an Officers'
Certificate delivered promptly to the Trustee and the Depositor, setting forth
the basis for such determination, together with a copy of any appraisal of the
related Mortgaged Property or REO Property, as the case may be; which appraisal
shall take into account the factors specified in Section 3.18(e), including
without limitation, any environmental, engineering or other third party reports
available, and other factors that a prudent real estate appraiser would consider
and shall be conducted in accordance with the standards of the Appraisal
Institute performed pursuant to Section 3.09(a) by the Master Servicer, or by
the Special Servicer if the Mortgage Loan is a Defaulted Mortgage Loan or, if no
such appraisal has been performed, a copy of an appraisal of the related
Mortgaged Property or REO Property, performed within the twelve months preceding
such determination and the party delivering such appraisal has no actual
knowledge of a material adverse change in the condition of the related Mortgaged
Property that would draw into question the applicability of such appraisal, by
an Independent Appraiser or other expert in real estate matters, and further
accompanied by related Mortgagor operating statements and financial statements,
budgets and rent rolls of the related Mortgaged Property and any engineers'
reports, environmental surveys or similar reports that the Master Servicer or
the Special Servicer may have obtained and that support such determination. The
Trustee shall be entitled to rely, conclusively, on any determination by the
Master Servicer or the Special Servicer that a Servicing Advance, if made, would
be a Nonrecoverable Advance; provided, however, that if the Master Servicer has
failed to make a Servicing Advance for reasons other than a determination by the
Master Servicer that such Servicing Advance would be a Nonrecoverable Advance,
the Trustee shall make such Servicing Advance within the time
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periods required by Section 3.03(c) unless the Trustee in good faith, makes a
determination that such Servicing Advance would be a Nonrecoverable Advance.
(f) The Master Servicer shall, as to all 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 (i) to pay for, or to reimburse the related
Mortgagor in connection with, the related environmental remediation, repairs
and/or capital improvements at the related Mortgaged Property if the repairs
and/or capital improvements have been completed, and such withdrawals are made
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 and (ii) to pay the Master Servicer interest and investment income
earned on amounts in the Reserve Accounts as described below. To the extent
permitted in the applicable Mortgage, funds in the Reserve Accounts to the
extent invested may be only invested in Permitted Investments in accordance with
the provisions of Section 3.06. All Reserve Accounts shall be Eligible Accounts.
The Reserve Accounts shall not be considered part of the segregated pool of
assets comprising REMIC I, REMIC II, REMIC III or REMIC IV (if any). Consistent
with the Servicing Standard, the Master Servicer may waive or extend the date
set forth in any agreement governing such Reserve Funds by which the required
repairs and/or capital improvements at the related Mortgaged Property must be
completed.
On or before the first anniversary of the Closing Date, the Master
Servicer shall deliver to the Special Servicer a report which identifies with
respect to each Mortgage Loan that requires Reserve Funds as of the Closing Date
and for which the required actions relating to which such Reserve Funds are
escrowed have not been completed by such first anniversary: (i) the amount of
Reserve Funds as of the Closing Date, (ii) the amount of Reserve Funds remaining
on the date of the reporting, (iii) the work scheduled to be completed under the
related Mortgage Loan documents, (iv) the date such work was scheduled to be
completed under the related Mortgage Loan documents and (v) the status of such
work.
SECTION 3.04. Certificate Account, Interest Reserve Account and
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 one Business Day of receipt of
available funds (in the case of payments by Mortgagors or other collections on
the Mortgage Loans) or as otherwise required hereunder, the following payments
and collections received or made by the Master Servicer or on its behalf
subsequent to the Cut-off Date (other than in respect of principal and interest
on the Mortgage Loans due and payable on or before the Cut-off Date (or in the
case of Semi-Annual Mortgage Loans, interest accrued prior to the Cut-off Date),
which payments shall be delivered promptly to the Mortgage Loan Seller or its
designee, with negotiable instruments endorsed as necessary and appropriate
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without recourse), or payments (other than Principal Prepayments) received by it
on or prior to the Cut-off Date but allocable to a period subsequent thereto:
(i) all payments on account of principal of the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans,
including Penalty Interest;
(iii) all Prepayment Premiums and Yield Maintenance Charges;
(iv) all Insurance Proceeds and Liquidation Proceeds (other than
Liquidation Proceeds described in clause (vi) of the definition thereof
that are required to be deposited in the Distribution Account pursuant to
Section 9.01) received in respect of any Mortgage Loan;
(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 hazard policy;
(vii) any amounts required to be transferred from an REO Account
pursuant to Section 3.16(c); and
(viii) any amount in respect of Purchase Prices and Substitution
Shortfall amounts pursuant to Section 2.03(b).
The foregoing requirements for deposit in the Certificate Account shall be
exclusive. Notwithstanding the foregoing, actual payments from Mortgagors in the
nature of Escrow Payments, amounts to be deposited in Reserve Accounts, and
amounts that the Master Servicer and the Special Servicer are entitled to retain
as additional servicing compensation pursuant to Sections 3.11(b) and (d), need
not be deposited by the Master Servicer in the Certificate Account. If the
Master Servicer shall deposit in the Certificate Account any amount not required
to be deposited therein, it may at any time withdraw such amount from the
Certificate Account, any provision herein to the contrary notwithstanding. The
Master Servicer shall promptly deliver to the Special Servicer as additional
servicing compensation in accordance with Section 3.11(d), assumption fees, late
charges and other transaction fees received by the Master Servicer to which the
Special Servicer is entitled pursuant to either of such Sections upon receipt of
a certificate of a Servicing Officer of the Special Servicer describing the item
and amount. 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 and the other accounts of the Master Servicer.
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Upon receipt of any of the amounts described in clauses (i) through (iv)
above with respect to any Mortgage Loan, the Special Servicer shall promptly,
but in no event later than one Business Day 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. 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 three 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 Paying Agent shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") at the Corporate Trust
Office to be held in trust for the benefit of the Certificateholders. The
Distribution Account shall be an Eligible Account. The Master Servicer shall
deliver to the Paying Agent each month on or before the P&I Advance Date
therein, for deposit in the Distribution Account, an aggregate amount of
immediately available funds equal to that portion of the Available Distribution
Amount (calculated without regard to clauses (a)(ii) and (b)(ii)(B) of the
definition thereof) for the related Distribution Date then on deposit in the
Certificate Account, together with (i) any Prepayment Premiums and/or Yield
Maintenance Charges received on the Mortgage Loans during the related Collection
Period and (ii) in the case of the final Distribution Date, any additional
amounts contemplated by the second paragraph of Section 9.01.
In addition, the Master Servicer shall, as and when required hereunder,
deliver to the Paying Agent 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 3.06 in connection with losses realized on Permitted
Investments with respect to funds held in the Distribution Account;
(iii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19 in connection with Prepayment Interest
Shortfalls; and
(iv) the Purchase Price paid in connection with the purchase by the
Master Servicer of all of the Mortgage Loans and any REO Properties
pursuant to Section 9.01, exclusive of the portion of such amounts
required to be deposited in the Certificate Account pursuant to Section
9.01.
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The Paying Agent shall, upon receipt, deposit in the Distribution Account
any and all amounts received by the Paying Agent that are required by the terms
of this Agreement to be deposited therein.
(c) The Master Servicer shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account"), held on behalf of the Trustee in
trust for the benefit of the Certificateholders. The Interest Reserve Account
shall be an Eligible Account. On or before each Distribution Date in February
and, during each year that is not a leap year, January, the Master Servicer
shall withdraw from the Certificate Account and deposit in the Interest Reserve
Account, with respect to each Interest Reserve Loan, an amount equal to the
Interest Reserve Amount in respect of such Interest Reserve Loan for such
Distribution Date (such withdrawal from the Certificate Account to be made out
of general collections on the Mortgage Pool where any related P&I Advance was
deposited in the Distribution Account).
(d) Funds in the Certificate Account, the Interest Reserve Account and the
Distribution Account may be invested only in Permitted Investments in accordance
with the provisions of Section 3.06. The Master Servicer shall give written
notice to the Trustee, the Special Servicer and the Rating Agencies of the
location of the Certificate Account as of the Closing Date and of the new
location of the Certificate Account prior to any change thereof. The Paying
Agent shall give notice to the Trustee, the Master Servicer, the Special
Servicer and the Rating Agencies of any new location of the Distribution Account
prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Certificate Account, Interest
Reserve 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 Paying Agent for deposit in the Distribution
Account the amounts required to be so deposited pursuant to the first
paragraph of Section 3.04(b) and any amount that may be applied to make
P&I Advances pursuant to Section 4.03(a);
(ii) to reimburse the Trustee and itself, in that order, for
unreimbursed P&I Advances, the Trustee's and Master Servicer's right to
reimbursement pursuant to this clause (ii) with respect to any P&I Advance
(other than Nonrecoverable Advances, which are reimbursable pursuant to
clause (vii) below) being limited to amounts that represent Late
Collections of interest, and in the case of Semi-Annual Mortgage Loans,
the Periodic Payment in respect of interest (net of the related Servicing
Fees) and principal (net of any related Principal Recovery Fee) received
in respect of the particular Mortgage Loan or REO Loan as to which such
P&I Advance was made;
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(iii) to pay to itself 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 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 earned and unpaid Special
Servicing Fees in respect of each Specially Serviced Mortgage Loan and REO
Loan and to reimburse the Special Servicer from any recoveries of Advances
previously made by the Master Servicer to the extent such Advances were
made or reimbursed out of late charges and Penalty Interest collected in
respect of Specially Serviced Mortgage Loans or recoveries on Advances, in
each case pursuant to Section 3.11(d);
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Principal Recovery Fees in respect of
each Specially Serviced Mortgage Loan, Corrected Mortgage Loan and REO
Loan, the Special Servicer's (or, if applicable, any predecessor Special
Servicer's) right to payment pursuant to this clause (v) with respect to
any such Mortgage Loan or REO Loan being limited to amounts received on or
in respect of such Mortgage Loan (whether in the form of payments,
Liquidation Proceeds or Insurance Proceeds) or such REO Loan (whether in
the form of REO Revenues, Liquidation Proceeds or Insurance Proceeds) that
are allocable as a recovery of principal thereon (provided that no
Principal Recovery Fee shall be payable out of any Liquidation Proceeds
received in connection with the purchase of any Mortgage Loan or REO
Property by the Mortgage Loan Seller pursuant to the Mortgage Loan
Purchase Agreement, by the Majority Subordinate Certificateholder pursuant
to Section 3.18(b), by the Master Servicer or Special Servicer pursuant to
Section 3.18(c) or by the Depositor, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder pursuant to Section
9.01);
(vi) to reimburse the Trustee or itself, in that order, for any
unreimbursed Servicing Advances, the Trustee's and the Master Servicer's
respective rights to reimbursement pursuant to this clause (vi) with
respect to any Servicing Advance being limited to payments made by the
related Mortgagor that are allocable to such Servicing Advance, or to
Liquidation Proceeds, 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 to the extent not reimbursed
pursuant to Section 3.11(d);
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(vii) to reimburse the Trustee or itself, in that order, for any
unreimbursed Advances that have been or are determined to be
Nonrecoverable Advances or to pay itself, with respect to any Mortgage
Loan or REO Property, any related earned Servicing Fee that remained
unpaid in accordance with clause (iii) above following a Final Recovery
Determination made with respect to such Mortgage Loan or REO Property and
the deposit into the Certificate Account of all amounts received in
connection therewith;
(viii) at such time as it reimburses the Trustee or itself, in that
order, for any unreimbursed Advance pursuant to clause (ii), (vi) or (vii)
above, to pay the Trustee or itself, as the case may be, in that order,
any interest accrued and payable thereon in accordance with Section
3.03(d) or 4.03(d), as applicable; the Master Servicer's rights to payment
pursuant to this clause (viii) with respect to interest on any Advance
being permitted to be satisfied (A) out of late payment charges and
Penalty Interest collected on or in respect of any Mortgage Loan or REO
Loan, during the same Collection Period in which such Advance is
reimbursed, and (B) to the extent that the late payment charges and
Penalty Interest described in the immediately preceding clause (A) are
insufficient, but only after such Advance has been reimbursed, out of
general collections on the Mortgage Loans and any REO Properties on
deposit in the Certificate Account.
(ix) to pay for costs and expenses pursuant to Sections 3.02(d) and
3.09(c);
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b), (A) interest and investment income earned
in respect of amounts held in the Certificate Account as provided in
Section 3.06(b), but only to the extent of the Net Investment Earnings
with respect to the Certificate Account for any Collection Period, (B)
Prepayment Interest Excesses and (C) Penalty Interest and late charges;
(to the extent such Penalty Interest and/or late payment charges were not
applied to offset interest on Advances pursuant to clause (viii)(A) above)
(xi) to pay for the cost of an independent appraiser or other expert
in real estate matters retained pursuant to Section 3.03(e), 3.09(a),
3.18(e) or 4.03(c);
(xii) to pay itself, the Special Servicer, the Depositor, or any of
their respective directors, officers, employees and agents, as the case
may be, any amounts payable to any such Person pursuant to Section 6.03;
(xiii) to pay for (A) the advice of counsel and tax accountants
contemplated by Section 3.17(a)(iii), (B) the cost of the Opinions of
Counsel contemplated by Sections 3.09(b)(ii), 3.09(c), 3.16(a) and
11.02(a), (C) the cost of an Opinion of Counsel contemplated by Section
11.01(a) or 11.01(c) in connection with any amendment to this Agreement
requested by the Master
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Servicer or the Special Servicer that protects or is in furtherance of the
rights and interests of Certificateholders, (D) the cost of obtaining any
REO Extension sought by the Special Servicer as contemplated by Section
3.16(a), and (E) the cost of recording this Agreement in accordance with
Section 11.02(a);
(xiv) to pay itself, the Special Servicer, the Mortgage Loan Seller,
the Majority Subordinate Certificateholder 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 withdraw any Interest Reserve Amount and deposit such
Interest Reserve Amount into the Interest Reserve Account pursuant to
Section 3.04(c); and
(xvi) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting records,
on a loan-by-loan and property-by-property basis when appropriate, in connection
with any withdrawal from the Certificate Account pursuant to clauses (ii) - (xv)
above.
The Master Servicer shall pay to the Special Servicer (or to third party
contractors at the direction of the Special Servicer) or the Trustee from the
Certificate Account amounts permitted to be paid to the Special Servicer (or to
such third party contractors) and the Trustee therefrom promptly upon receipt of
a certificate of a Servicing Officer of the Special Servicer or of a Responsible
Officer of the Trustee describing the item and amount to which the Special
Servicer (or such third party contractors) and the Trustee 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. With
respect to each Mortgage Loan for which it makes an Advance, the Trustee shall
similarly keep and maintain separate accounting for each Mortgage Loan, on a
loan-by-loan and property-by-property basis, for the purpose of justifying any
request for withdrawal from the Certificate Account for reimbursements of
Advances or interest thereon.
(b) The Paying Agent may, from time to time, make withdrawals from the
Distribution Account for any of the following purposes (in no particular order
of priority):
(i) to make distributions to Certificateholders on each Distribution
Date pursuant to Section 4.01 or 9.01, as applicable;
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(ii) to pay the Trustee or any of their 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;
(iii) to pay the Master Servicer, as additional servicing
compensation in accordance with Section 3.11(b), interest and investment
income earned in respect of amounts held in the Distribution Account as
provided in Section 3.06(b) (but only to the extent of the Net Investment
Earnings with respect to the Distribution Account for any Collection
Period);
(iv) to pay for the cost of the Opinions of Counsel sought by the
Trustee (A) as provided in clause (v) of the definition of "Disqualified
Organization", (B) as contemplated by Sections 9.02(a)(i) and 10.01(i), or
(C) as contemplated by Section 11.01(a) or 11.01(c) in connection with any
amendment to this Agreement requested by the Trustee which amendment is in
furtherance of the rights and interests of Certificateholders;
(v) to pay any and all federal, state and local taxes imposed on any
of the REMICs created hereunder or on the assets or transactions of any
such REMIC, together with all incidental costs and expenses, to the extent
none of the Trustee, the REMIC Administrator, the Master Servicer or the
Special Servicer is liable therefor pursuant to Section 10.01(j);
(vi) to pay the REMIC Administrator any amounts reimbursable to it
pursuant to Section 10.01(f);
(vii) to pay to the Master Servicer any amounts deposited by the
Master Servicer in the Distribution Account not required to be deposited
therein; and
(viii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) The Master Servicer shall on each P&I Advance Date to occur in March
of each year, withdraw from the Interest Reserve Account and deposit into the
Distribution Account in respect of each Interest Reserve Loan, an amount equal
to the aggregate of the Interest Reserve Amounts deposited into the Interest
Reserve Account pursuant to Section 3.04(c) during the immediately preceding
Collection Period and, if applicable, the second preceding Collection Period.
SECTION 3.06. Investment of Funds in the Servicing Accounts, the Reserve
Accounts, the Certificate Account, the Distribution Account and the REO Account.
(a) The Master Servicer may direct in writing any depository institution
maintaining a Servicing Account, a Reserve Account, the Interest Reserve Account
or the
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Certificate Account and may direct in writing the Paying Agent with respect to
the Distribution Account (each, for purposes of this Section 3.06, an
"Investment Account"), and the Special Servicer may direct in writing any
depository institution maintaining the REO Account (also, for purposes of this
Section 3.06, an "Investment Account"), to invest, or if it is such depository
institution, may itself invest, the funds held therein in one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless payable
on demand, 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. In the event that the Master Servicer shall
have failed to give investment directions for any Servicing Account, any Reserve
Account, the Certificate Account, the Interest Reserve Account or the
Distribution Account (exclusive of any accounts as are held by the Master
Servicer) or the Special Servicer shall have failed to give investment
directions for the REO Account by 11:00 A.M. New York time on any Business Day
on which there may be uninvested cash, such funds held in the REO account shall
be invested in securities described in clause (i) of the definition of the term
"Permitted Investments"; and such funds held in such other accounts shall be
invested in securities described in clause (v) of such definition. The Paying
Agent agrees that funds in the Distribution Account will be invested in
accordance herewith on the day of receipt if received by 5:00 P.M. New York
time. All such Permitted Investments shall be held to maturity, unless payable
on demand. Any investment of funds in an Investment Account shall be made in the
name of the Trustee (in its capacity as such). The Master Servicer (with respect
to Permitted Investments of amounts in the Servicing Accounts, the Reserve
Accounts, the Certificate Account, the Interest Reserve Account and the
Distribution Account) and the Special Servicer (with respect to Permitted
Investments of amounts in the REO Account), on behalf of the Trustee, shall (and
the Trustee hereby designates the Master Servicer and the Special Servicer, as
applicable, as the person that shall) maintain continuous possession of any
Permitted Investment that is either (i) a "certificated security", as such term
is defined in the UCC, or (ii) other property in which a secured party may
perfect its security interest by possession under the UCC or any other
applicable law. Possession of any such Permitted Investment by the Master
Servicer or the Special Servicer shall constitute possession by a Person
designated by the Trustee for purposes of Section 8-313 of the UCC and
possession by the Trustee, as secured party, for purposes of Section 9-305 of
the UCC and any other applicable law. If amounts on deposit in an Investment
Account are at any time invested in a Permitted Investment payable on demand,
the Master Servicer (in the case of the Certificate Account, Servicing Accounts,
the Interest Reserve Account and Reserve Accounts), the Paying Agent (in the
case of the Distribution Account) or the Special Servicer (in the case of the
REO Account) shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (1) all amounts then payable thereunder and (2) the amount required to
be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer or the Special Servicer, as the case
may be, that
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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
any of the Servicing Accounts, the Reserve Accounts, the Certificate Account,
the Interest Reserve Account or the Distribution Account, interest and
investment income realized on funds deposited therein, to the extent of the
related Net Investment Earnings, if any, for each Collection Period and, in the
case of a Reserve Account or a Servicing Account, to the extent not otherwise
payable to the related Mortgagor in accordance with applicable law or the
related loan documents, shall be for the sole and exclusive benefit of the
Master Servicer and shall be subject to its withdrawal in accordance with
Section 3.03(a), 3.03(f) or 3.05(a) or withdrawal by the Paying Agent at its
direction in accordance with Sections 3.05(b), as applicable. 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 each Collection Period, shall be for the
sole and exclusive benefit of the Special Servicer and shall be subject to its
withdrawal in accordance with Section 3.16(b). If any loss shall be incurred in
respect of any Permitted Investment on deposit in any Investment Account, the
Master Servicer (in the case of the Servicing Accounts, the Reserve Accounts,
the Certificate Account and the Distribution Account) and the Special Servicer
(in the case of the REO Account) shall promptly deposit therein from its own
funds, without right of reimbursement, no later than the end of the Collection
Period during which such loss was incurred, the amount of the Net Investment
Loss, if any, for such Collection Period.
(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 Special Servicer or the Master Servicer fails to deposit any
losses with respect to such Permitted Investment pursuant to Section 3.06(b),
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 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, the amounts so
invested 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) The Master Servicer (with respect to Mortgage Loans other than
Specially Serviced Mortgaged Loans) and the Special Servicer (with respect to
Specially Serviced Mortgage Loans) shall, consistent with the Servicing
Standard, cause to be maintained for each Mortgaged Property all insurance
coverage as is required under the related Mortgage; provided that if and to the
extent that any such Mortgage permits the holder thereof
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any discretion (by way of consent, approval or otherwise) as to the insurance
coverage that the related Mortgagor is required to maintain, the Master Servicer
shall exercise such discretion in a manner consistent with the Servicing
Standard; and provided further that, if and to the extent that a Mortgage so
permits, the related Mortgagor shall be required to exercise its reasonable best
efforts to obtain the required insurance coverage from Qualified Insurers that
have a "claims paying ability" rating of at least "A" from Standard & Poor's and
a comparable rating from at least one other nationally recognized statistical
rating agency. The Majority Subordinate Certificateholder may request that
earthquake insurance be secured for one or more Mortgaged Properties at the
expense of the Majority Subordinate Certificateholder. Subject to Section
3.17(a), the Special Servicer shall also cause to be maintained for each REO
Property no less insurance coverage than was previously required of the
Mortgagor under the related Mortgage; provided that all such insurance shall be
obtained from Qualified Insurers that, if they are providing casualty insurance,
shall have a claims paying ability rating of at least "A" and "A2" from Standard
& Poor's and Moody's (if then rated by Moody's), respectively (or Standard &
Poor's and a comparable rating from one other nationally recognized statistical
rating agency, if such insurer is not rated by Moody's) or such lower rating as
will not result in qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates, as evidenced in writing by the Rating Agencies.
All such insurance policies (i) shall contain (if they insure against loss to
property and do not relate to an REO Property) a "standard" mortgagee clause,
with loss payable to the Master Servicer (in the case of insurance maintained in
respect of Mortgage Loans); (ii) shall be in the name of the Special Servicer
(in the case of insurance maintained in respect of REO Properties), on behalf of
the Trustee; (iii) shall be non-cancelable without 30 days' prior written notice
to the insured party; and (iv) in each case such insurance shall be issued by an
insurer authorized under applicable law to issue such insurance. Any amounts
collected by the Master Servicer or the 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 subject to the rights of any tenants and ground lessors,
as the case may be, and in each case in accordance with the terms of the related
Mortgage and 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 in maintaining any such insurance shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to unpaid principal balance of the related Mortgage
Loan, notwithstanding that the terms of such Mortgage Loan so permit.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy insuring
against hazard losses on all of the Mortgage Loans and/or REO Properties that it
is required to service and administer, then, to the extent such policy (i) is
obtained from a Qualified Insurer having a claims-paying rating (or guaranteed
by or backed in writing by a company having such claims-paying rating) of at
least "A" and "A2" from Standard & Poor's and Moody's, respectively (or Standard
& Poor's and a comparable rating from one other nationally recognized
statistical rating agency,
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if such insurer is not rated by Moody's) or such lower rating of any Rating
Agency or rating from any other nationally recognized statistical rating agency
as will not result in qualification, downgrading or withdrawal of the ratings
then assigned to the Certificates, as evidenced in writing by the Rating
Agencies, and (ii) provides protection equivalent to the individual policies
otherwise required, the Master Servicer or the Special Servicer, as the case may
be, shall conclusively be deemed to have satisfied its obligation to cause
hazard insurance to be maintained on the related Mortgaged Properties and/or REO
Properties. Such 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 a hazard insurance policy complying
with the requirements of Section 3.07(a), and there shall have been one or more
losses that would have been covered by such policy, promptly deposit into the
Certificate Account from its own funds the amount not otherwise payable under
the blanket policy because of such deductible clause. The Master Servicer or the
Special Servicer, as appropriate, shall prepare and present, on behalf of
itself, the Trustee and Certificateholders, claims under any such blanket policy
in a timely fashion in accordance with the terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in
force with Qualified Insurers a fidelity bond issued by an insurer having a
claims-paying rating (or guaranteed by or backed in writing by a company having
such claims-paying rating) of at least "A" and "A2" from Standard & Poor's and
Moody's (if then rated by Moody's), respectively, or such lower rating of any
Rating Agency or rating from any other nationally recognized statistical rating
agency as will not result in qualification, downgrading or withdrawal of the
ratings then assigned to the Certificates, as evidenced in writing by the Rating
Agencies, such fidelity bond to be in such form and amount as would permit it to
be a qualified FNMA seller-servicer of multifamily mortgage loans, or in such
other form and amount as would not cause the qualification, downgrading or
withdrawal of any rating assigned by any Rating Agency to the Certificates (as
evidenced in writing from each Rating Agency); and provided that the Master
Servicer's current fidelity insurer, Travellers Insurance Company, shall be
deemed to satisfy the requirements of this section so long as it maintains a
claims-paying rating of "A" or better from Standard & Poor's and Baa3 or higher
by Moody's. 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 for ten days' written notice
to the Trustee prior to any cancellation.
Each of the Master Servicer and the Special Servicer shall at all times
during the term of this Agreement (or, in the case of the Special Servicer, at
all times during the term of this Agreement in which Specially Serviced Mortgage
Loans and/or REO Properties exist as part of the Trust Fund) also keep in force
with Qualified Insurers having a claims-paying rating (or guaranteed by or
backed in writing by a company having such claims-paying rating)
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of at least "A" and "A2" from Standard & Poor's and Moody's (if then rated by
Moody's), respectively, or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the Rating Agencies, respectively, a
policy or policies of insurance covering loss occasioned by the errors and
omissions of its officers, employees and agents in connection with its servicing
obligations hereunder, which policy or policies shall be in such form and amount
as would permit it to be a qualified FNMA seller-servicer of multifamily
mortgage loans, or in such other form and amount as would not adversely affect
any rating assigned by any Rating Agency to the Certificates (as evidenced in
writing from each Rating Agency). Each of the Master Servicer and the Special
Servicer shall be deemed to have complied with the foregoing provisions if an
Affiliate thereof has such insurance and, by the terms of such policy or
policies, the coverage afforded thereunder extends to the Master Servicer or the
Special Servicer, as the case may be. Any such errors and omissions policy shall
provide for ten days' written notice to the Trustee prior to cancellation. The
Master Servicer and the Special Servicer shall each cause the Trustee to be an
additional loss payee on any policy currently in place or procured pursuant to
the requirements of this Section 3.07(c).
For so long as the long-term debt obligations of the Master Servicer or
Special Servicer, as the case may be (or in the case of the initial Master
Servicer and Special Servicer, their respective direct or indirect parent), are
rated at least "A" or the equivalent by all of the Rating Agencies (or such
lower rating as will not result in qualification, downgrading or withdrawal of
the ratings then assigned to the Certificates, as evidenced in writing by the
Rating Agencies), such Person may self-insure with respect to the risks
described in this subsection.
SECTION 3.08. Enforcement of Alienation Clauses.
With respect to all Mortgage Loans, the Special Servicer, on behalf of the
Trustee as the mortgagee of record, shall, to the extent permitted by applicable
law, enforce the restrictions contained in the related Mortgage on transfers or
further encumbrances of the related Mortgaged Property and on transfers of
interests in the related Mortgagor, unless the Special Servicer has determined,
consistent with the Servicing Standard, that waiver of such restrictions would
be in accordance with the Servicing Standard. Promptly after the Special
Servicer has made any such determination, the Special Servicer shall deliver to
the Trustee, the Rating Agencies and the Master Servicer an Officers'
Certificate setting forth the basis for such determination. The Special Servicer
shall not exercise any such waiver in respect of a due-on-encumbrance provision
without receiving the prior written confirmation from the Rating Agencies that
such action would not result in a downgrading, qualification or withdrawal of
the ratings then assigned to the Certificates. The Special Servicer shall not
exercise any such waiver in respect of a due-on-sale provision of any Mortgage
Loan for which the sum of the principal balance of such Mortgage Loan and the
principal balance of all other Mortgage Loans that are cross-collateralized,
cross-defaulted or have been made to Mortgagors affiliated with the Mortgagor on
such Mortgage Loan exceeds 5% of the aggregate principal balance of all of the
Mortgage Loans as of the date of such proposed waiver, without receiving the
prior written confirmation from the Rating Agencies that such action would not
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result in a downgrading, qualification or withdrawal of any of the ratings then
assigned to the Certificates.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required
Appraisals.
(a) The Special Servicer shall, subject to Sections 3.09(b) through
3.09(d) and Section 6.11, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert 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, including, without limitation, pursuant to
Section 3.20. Subject to the second paragraph of Section 3.03(c), the Master
Servicer shall advance all costs and expenses (other than costs or expenses that
would, if incurred, constitute a Nonrecoverable Servicing Advance) incurred by
the Special Servicer in any such proceedings, and shall be entitled to
reimbursement therefor as provided in Section 3.05(a). Nothing contained in this
Section 3.09 shall be construed so as to require the Special Servicer, on behalf
of the Trust Fund, to make a bid on any Mortgaged Property at a foreclosure sale
or similar proceeding that is in excess of the fair market value of such
property, as determined by the Special Servicer in accordance with the Servicing
Standard and in its reasonable and good faith judgment taking into account the
factors described in Section 3.18(e) and the results of any appraisal obtained
pursuant to the following sentence, all such bids to be made in a manner
consistent with the Servicing Standard. If and when the Master Servicer or the
Special Servicer deems it necessary and prudent for purposes of establishing the
fair market value of any Mortgaged Property securing a defaulted Mortgage Loan,
whether for purposes of bidding at foreclosure or otherwise, it may, at the
expense of the Trust Fund, have an appraisal performed with respect to such
property by an Independent Appraiser or other expert in real estate matters;
which appraisal shall take into account the factors specified in Section
3.18(e), including without limitation, any environmental, engineering or other
third party reports available, and other factors that a prudent real estate
appraiser would consider. With respect to each Required Appraisal Mortgage Loan,
the Special Servicer will be required to obtain a Required Appraisal within 60
days of a Mortgage Loan becoming a Required Appraisal Mortgage Loan (unless an
appraisal meeting the requirements of a Required Appraisal was obtained for such
Required Appraisal Mortgage Loan within the prior 12 months and the Special
Servicer has no actual knowledge of a material adverse change in the condition
of the related Mortgaged Property in which case such appraisal may be a letter
update of the Required Appraisal) and thereafter shall obtain a Required
Appraisal once every 12 months (or sooner if the Special Servicer has actual
knowledge of a material adverse change in the condition of the related Mortgaged
Property) if such Mortgage Loan remains a Required Appraisal Mortgage Loan. The
Special Servicer will deliver a copy of each Required Appraisal to the Master
Servicer and the Trustee within 10 Business Days of obtaining such Required
Appraisal. Subject to the second paragraph of Section 3.03(c), the Master
Servicer shall advance the cost of such Required Appraisal; provided, however,
that such expense will be subject to reimbursement to the Master Servicer as a
Servicing Advance out of the Certificate Account pursuant to Section 3.05(a)(vi)
and 3.05(a)(vii).
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(b) The Special Servicer shall not acquire any personal property pursuant
to this Section 3.09 unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which may be withdrawn from the Certificate Account pursuant
to Section 3.05(a)) to the effect that the holding of such personal
property as part of the Trust Fund will not cause the imposition of a tax
on any of REMIC I, REMIC II, REMIC III or REMIC IV (if any) under the
REMIC Provisions or cause any of REMIC I, REMIC II, REMIC III or REMIC IV
(if any) to fail to qualify as a REMIC at any time that any Certificate is
outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09, neither
the Master Servicer nor the Special Servicer shall, on behalf of the Trustee,
obtain title to a Mortgaged Property by deed in lieu of foreclosure or
otherwise, or take any other action with respect to any Mortgaged Property, if,
as a result of any such action, the Trustee, on behalf of the
Certificateholders, could, in the reasonable judgment of the Master Servicer or
the Special Servicer, as the case may be, made in accordance with the Servicing
Standard, 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 (a "potentially responsible party"), unless (as
evidenced by an Officers' Certificate to such effect delivered to the Trustee
that shall specify all of the bases for such determination) the Special Servicer
has previously determined in accordance with the Servicing Standard, and based
on a Environmental Assessment of such Mortgaged Property performed by an
Independent Person who regularly conducts Environmental Assessments and
performed within six months prior to any such acquisition of title or other
action (a copy of which Environmental Assessment shall be delivered to the
Trustee and the Master Servicer), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would maximize the
recovery to the 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) to
acquire title to or possession of the Mortgaged Property and to take such
actions as are necessary to bring the Mortgaged Property into compliance
therewith in all material respects; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could
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reasonably be expected to be required, that it would maximize the recovery
to the 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) to
acquire title to or possession of the Mortgaged Property and to take such
actions with respect to the affected Mortgaged Property.
The Special Servicer shall undertake, in good faith, reasonable efforts to
make the determination referred to in the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment, as well as
the cost of any remedial, corrective or other further action contemplated by
clause (i) and/or clause (ii) of the preceding paragraph shall, subject to the
second paragraph of Section 3.03(c), be advanced by the Master Servicer and may
be reimbursed to the Master Servicer from the Certificate Account as a Servicing
Advance pursuant to Section 3.05(a)(vi) and 3.05(a)(vii); and if any such
Environmental Assessment so warrants, the Special Servicer shall, perform such
additional environmental testing as it deems necessary and prudent to determine
whether the conditions described in clauses (i) and (ii) of the preceding
paragraph have been satisfied, the cost of which shall, subject to the second
paragraph of Section 3.03(c), be advanced by the Master Servicer and may be
reimbursed to the Master Servicer from the Certificate Account as a Servicing
Advance pursuant to Section 3.05(a)(vi) and 3.05(a)(vii).
(d) If the environmental testing contemplated by Section 3.09(c) above
establishes that any 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) 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, if such
Mortgage Loan has a then outstanding principal balance of greater than $1
million, then 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 Rating Agencies, the Controlling Class Representative, Trustee
and the Master Servicer in writing of its intention to so release all or a
portion of such Mortgaged Property and the bases for such intention, (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 have consented to such release within 30 days of the Trustee's
distributing such notice (failure to respond by the end of such 30-day period
being deemed consent).
(e) The Special Servicer shall report to the Master Servicer, the
Controlling Class Representative, and the Trustee monthly in writing as to any
actions taken by the Special Servicer with respect to any Mortgaged Property
that represents security for a defaulted Mortgage Loan as to which the
environmental testing contemplated in Section 3.09(c) above has revealed that
any of the conditions set forth in clauses (i) and (ii) of the first sentence
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thereof has not been satisfied, in each case until the earlier to occur of
satisfaction of all such conditions and release of the lien of the related
Mortgage on such Mortgaged Property.
(f) The Special Servicer shall have the right to determine, in accordance
with the Servicing Standard, the advisability of seeking 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 and shall, in accordance with the
Servicing Standard, seek such deficiency judgment if it deems advisable.
(g) The Special Servicer shall, with the reasonable cooperation of the
Master Servicer, prepare and file information returns with respect to the
receipt of mortgage interest received in a trade or business, the reports of
foreclosures and abandonments of any Mortgaged Property and the information
returns relating to cancellation of indebtedness income with respect to any
Mortgaged Property required by Sections 6050H, 6050J and 6050P of the Code and
each year deliver to the Trustee an Officers' Certificate stating that such
reports have been filed. Such reports shall be in form and substance sufficient
to meet the reporting requirements imposed by Sections 6050H, 6050J and 6050P of
the Code.
(h) The Special Servicer shall maintain accurate records, prepared by a
Servicing Officer, of each Final Recovery Determination in respect of any
Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officers' Certificate delivered to the
Trustee and the Master Servicer no later than the third Business Day following
such Final Recovery Determination.
(i) Upon reasonable request of the Master Servicer, the Special Servicer
shall deliver to it and the related Sub-Servicer any other information and
copies of any other documents in its possession with respect to a Specially
Serviced Mortgage Loan or the related Mortgaged Property that are necessary for
the Master Servicer to perform its obligations hereunder.
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage
Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full shall be escrowed in a
manner customary for such purposes, the Master Servicer shall promptly notify
the Trustee in writing, who shall release or cause the related Custodian to
release, by a certification (which certification shall be in the form of a
Request for Release in the form of Exhibit D-1 attached hereto and shall be
accompanied by the form of a release or discharge and shall include a statement
to the effect that all amounts received or to be received in connection with
such payment which are required to be deposited in the Certificate Account
pursuant to Section 3.04(a) have been or will be so deposited) of a Servicing
Officer (a copy of which certification shall be delivered to the Special
Servicer) and shall request delivery to it of the related Mortgage File. Upon
receipt of such certification and request, the Trustee shall release, or cause
any related Custodian to release, the related Mortgage File to the Master
Servicer and shall deliver to the Master Servicer such release or discharge,
duly executed. No expenses incurred in connection
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with any instrument of satisfaction or deed of reconveyance shall be chargeable
to the Certificate Account or the Distribution 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), the Trustee, upon
request of the Master Servicer and receipt from the Master Servicer of a Request
for Release in the form of Exhibit D-1 attached hereto signed by a Servicing
Officer thereof, or upon request of the Special Servicer and receipt from the
Special Servicer of a Request for Release in the form of Exhibit D-2 attached
hereto, 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 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 that are required to be deposited into the Certificate Account
pursuant to Section 3.04(a) have been or will be so deposited, or that such
Mortgage Loan has become an REO Property, a copy of the Request for Release
shall be released by the Trustee or related Custodian to the Master Servicer or
the Special Servicer, as applicable.
(c) Within seven Business Days (or within such shorter period (but no less
than three Business Days) as execution and delivery can reasonably be
accomplished if the Special Servicer notifies the Trustee of an exigency) of the
Special Servicer's request therefor, the Trustee shall execute and deliver to
the Special Servicer (or the Special Servicer may execute and deliver in the
name of the Trustee based on a limited power of attorney issued in favor of the
Special Servicer pursuant to Section 3.01(b)), in the form supplied to the
Trustee, any court pleadings, requests for trustee's sale or other documents
stated by the Special Servicer to be reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or REO 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 to defend any legal action or counterclaim
filed against the Trust Fund, the Master Servicer or the Special Servicer.
Together with such documents or pleadings, the Special Servicer shall deliver to
the Trustee a certificate of a Servicing Officer requesting that such pleadings
or documents be executed by the Trustee and certifying as to the reason such
documents or pleadings are required and that the execution and delivery thereof
by the Trustee will not invalidate or otherwise affect the lien of the Mortgage,
except for the termination of such a lien upon completion of the foreclosure or
trustee's sale.
SECTION 3.11. Servicing Compensation.
(a) As compensation for its activities hereunder, the Master Servicer
shall be entitled to receive the Master Servicing Fee with respect to each
Mortgage Loan (including 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 related Master Servicing Fee Rate and on the same principal amount
respecting which the related interest payment due on such
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Mortgage Loan or deemed to be due on such REO Loan is computed and calculated on
the basis of a 360-day year consisting of twelve 30-day months (or, in the event
of a Principal Prepayment in full or other Liquidation Event with respect to a
Mortgage Loan or REO Loan, on the basis of the actual number of days to elapse
from and including the related Due Date to but excluding the date of such
Principal Prepayment or Liquidation Event in a month consisting of 30 days). 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 (or, with respect to any
Semi-Annual Mortgage Loan, semi-annually), on a loan-by-loan basis, from
payments of interest on each Mortgage Loan and REO Revenues allocable as
interest on each REO Loan. The Master Servicer shall be entitled to recover
unpaid Master Servicing Fees in respect of any Mortgage Loan or REO Loan out of
that portion of related Insurance Proceeds or Liquidation Proceeds allocable as
recoveries of interest, to the extent permitted by Section 3.05(a)(iii). The
right to receive the Master Servicing Fee may not be transferred in whole or in
part except in connection with the transfer of all of the Master Servicer's
responsibilities and obligations under this Agreement.
(b) Additional servicing compensation in the form of (i) late charges,
Penalty Interest, assumption application fees, modification fees for Mortgage
Loan modifications made pursuant to Section 3.20(i), charges for beneficiary
statements or demands, amounts collected for checks returned for insufficient
funds and any similar fees (excluding Prepayment Premiums or Yield Maintenance
Charges), in each case to the extent actually paid by a Mortgagor with respect
to a Mortgage Loan and accrued during the time that such Mortgage Loan was not a
Specially Serviced Mortgage Loan, and (ii) fifty percent (50%) of any assumption
fee to the extent actually paid by a Mortgagor with respect to any Mortgage Loan
may be retained by the Master Servicer and are not required to be deposited in
the Certificate Account provided that the Master Servicer's right to receive
late payment charges and Penalty Interest pursuant to clause (i) above shall be
limited to the portion of such items that have not been applied to pay interest
on Advances in respect of the related Mortgage Loan as provided in Sections
3.03(d) and 4.03(d). The Master Servicer shall also be entitled to additional
servicing compensation in the form of (i) Prepayment Interest Excesses; (ii)
interest or other income earned on deposits in the Certificate Account, the
Interest Reserve Account and the Distribution Account, in accordance with
Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to each such account for each Collection Period), and (iii) to the
extent not required to be paid to any Mortgagor under applicable law or the
terms of the related Mortgage Loan, any interest or other income earned on
deposits in the Reserve Accounts and Servicing Accounts maintained thereby. The
Master Servicer shall be required to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including,
without limitation, payment of any amounts due and owing to any of its
Sub-Servicers and the premiums for any blanket policy insuring against hazard
losses pursuant to Section 3.07(b)), if and to the extent such expenses are not
payable directly out of the Certificate Account, and the Master Servicer shall
not be entitled to reimbursement therefor except as expressly provided in this
Agreement.
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(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 same principal amount
respecting which the related interest payment due on such Mortgage Loan or
deemed to be due on such REO Loan is computed and calculated on the basis of a
360-day year consisting of twelve 30-day months (or, in the event of a Principal
Prepayment in full or other Liquidation Event with respect to a Mortgage Loan or
REO Loan, on the basis of the actual number of days to elapse from and including
the related Due Date to but excluding the date of such Principal Prepayment or
Liquidation Event in a month consisting of 30 days). 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).
In addition, with respect to each Specially Serviced Mortgage Loan,
Corrected Mortgage Loan and REO Loan (or Qualified Substitution Mortgage Loan
substituted in lieu thereof), the Special Servicer shall be entitled to the
Principal Recovery Fee payable out of, and equal to 1.0% of, all amounts
(whether in the form of payments, Insurance Proceeds, Liquidation Proceeds or
REO Revenues) received in respect of such Mortgage Loan (or, in the case of an
REO Loan, in respect of the related REO Property) and allocable as a recovery of
principal in accordance with Section 3.02(b) or the definition of "REO Loan", as
applicable; provided that no Principal Recovery Fee shall be payable in
connection with, or out of Liquidation Proceeds resulting from, the purchase of
any Mortgage Loan or REO Property by the Mortgage Loan Seller pursuant to the
Mortgage Loan Purchase Agreement, by the Majority Subordinate Certificateholder
pursuant to Section 3.18(b), by the Master Servicer or the Special Servicer
pursuant to Section 3.18(c) or by the Depositor, the Master Servicer, the
Special Servicer or the Majority Subordinate Certificateholder pursuant to
Section 9.01.
The Special Servicer's right to receive the Special Servicing Fee and the
Principal Recovery 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 Sections 6.02, 6.04 and 6.09.
(d) Additional servicing compensation in the form of (i) late charges and
Penalty Interest received on or with respect to Specially Serviced Mortgage
Loans actually collected that accrued with respect of such Specially Serviced
Loan (in which case the Special Servicer shall remit such amounts to the Master
Servicer) and any recoveries of Advances previously made by the Master Servicer
to the extent such Advances were paid out of late charges and Penalty Interest
collected in respect of Specially Serviced Mortgage Loans, (ii) fifty percent
(50%) of assumption fees collected on all Mortgage Loans and (iii) modification
fees collected on all Mortgage Loans (other than modifications made by the
Master Servicer pursuant to Section 3.20(i)), in each case to the extent
actually paid by the related Mortgagor, shall be retained by the Special
Servicer or promptly paid to the Special
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Servicer by the Master Servicer and shall not be required to be deposited in the
Certificate Account pursuant to Section 3.04(a) provided that the Special
Servicer's right to receive late payment charges, Penalty Interest and any
recoveries of Advances that were previously made or reimbursed out of late
charges and Penalty Interest collected in respect of Specially Serviced Mortgage
Loans or recoveries on Advances pursuant to clause (i) above shall be limited to
the portion of such items that have not been applied to make or reimburse
Advances pursuant to the second paragraph of this Section 3.11(d) or interest on
Advances pursuant to Section 3.03(d) or Section 4.03(d). The Special Servicer
shall also be entitled to additional servicing compensation in the form of: (i)
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);
and (ii) to the extent not required to be paid to any Mortgagor under applicable
law, any interest or other income earned on deposits in the Servicing Accounts
maintained by the Special Servicer. The Special Servicer shall be required to
pay out of its own funds all expenses incurred by it in connection with its
servicing activities hereunder (including, without limitation, payment of any
amounts due and owing to any of its Sub-Servicers and the premiums for any
blanket policy obtained by it insuring against hazard losses pursuant to Section
3.07(b)), and the Special Servicer shall be entitled to reimbursement therefor
as expressly provided in Section 3.05(a) if and to the extent such expenses are
not payable directly out of the Certificate Account or the REO Account.
The Master Servicer shall apply (i) all late charges and Penalty Interest
otherwise owed to the Special Servicer during each Collection Period pursuant to
Section 3.11(d) and (ii) all recoveries during each Collection Period of
Advances previously made by the Master Servicer to the extent made or reimbursed
out of late charges and Penalty Interest or previous recoveries of Advances
pursuant to this Section 3.11(d) otherwise owed to the Special Servicer pursuant
to this Section 3.11(d), to make (or to the extent already made during such
Collection Period, reimburse itself for) any Servicing Advances or P&I Advances
made during or in respect of such Collection Period.
SECTION 3.12. Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports.
(a) The Special Servicer shall at its expense perform or cause to be
performed a physical inspection of a Mortgaged Property as soon as practicable
after a related Mortgage Loan becomes a Specially Serviced Mortgage Loan. Each
of the Master Servicer for each Mortgage Loan other than a Specially Serviced
Mortgage Loan or REO Loan and the Special Servicer for each Specially Serviced
Mortgage Loan and REO Loan, shall at its expense perform or cause to be
performed an inspection of all the Mortgaged Properties at least once per
calendar year (or, in the case of Mortgage Loans with a then current principal
balance of less than $2,000,000, every other calendar year) beginning in 1999.
The Special Servicer and the Master Servicer shall each prepare (and, in the
case of the Special Servicer, shall deliver to the Master Servicer) a written
report of each such inspection performed by it that sets forth in detail the
condition of the Mortgaged Property and that specifies the existence
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of: (i) any sale, transfer or abandonment of the Mortgaged Property of which it
is aware, (ii) any change in the condition or value of the Mortgaged Property
that it, in its reasonable judgment, considers material, or (iii) any waste
committed on the Mortgaged Property. The Master Servicer shall deliver such
reports to the Trustee within 45 days of the related inspection and the Trustee
shall make copies of all such inspection reports available for review by
Certificateholders and Certificate Owners during normal business hours at the
offices of the Trustee at all times after Trustee's receipt thereof. The Special
Servicer shall have the right to inspect or cause to be inspected (at its own
expense) every calendar year any Mortgaged Property related to a loan that is
not a Specially Serviced Mortgage Loan, provided that the Special Servicer
notifies the Master Servicer prior to such inspection, and provides a copy of
such inspection to the Master Servicer. If the Special Servicer performs such
inspection such inspection shall satisfy the Master Servicer's inspection
obligations pursuant to this paragraph (a).
With respect to site inspection information, the Master Servicer shall
make such inquiry of any Mortgagor under any related Mortgage Loan as the
Special Servicer may reasonably request.
The Special Servicer will, promptly after a Mortgage Loan becomes a
Specially Serviced Mortgage Loan, give written notice to the Master Servicer,
the Controlling Class Representative and the Trustee which will include an
explanation as to the reasons such Mortgage Loan became a Specially Serviced
Mortgage Loan and the Special Servicer's plan for servicing such Mortgage Loan,
a copy of which notice will be provided by the Trustee to each Rating Agency and
upon request to each Certificateholder and the Depositor.
(b) Not later than 2:00 p.m. (New York City time) on the second Business
Day prior to each Determination Date, the Special Servicer shall deliver or
cause to be delivered to the Master Servicer, the following reports with respect
to the Specially Serviced Mortgage Loans and any REO Properties, providing the
required information as of the end of the preceding calendar month: (i) a CSSA
Property File Report; and (ii) a Comparative Financial Status Report. Not later
than 2:00 p.m. (New York City time) on the second Business Day following each
Determination Date, the Special Servicer shall deliver or cause to be delivered
to the Master Servicer the following reports with respect to the Mortgage Loans
(and, if applicable, the related REO Properties) (or, as to clauses (iv) and (v)
below, only with respect to Specially Serviced Mortgage Loans) providing the
required information as of such Determination Date: (i) a Historical Loss
Estimate Report; (ii) a Historical Loan Modification Report; (iii) an REO Status
Report; (iv) a Delinquent Loan Status Report; and (v) a Loan Payoff Notification
Report.
(c) Not later than 4:00 p.m. (New York City time) on the third Business
Day after each Determination Date, the Master Servicer shall deliver or cause to
be delivered to the Trustee (in electronic format acceptable to the Master
Servicer and the Trustee) (A) the most recent Historical Loan Modification
Report, Historical Loss Estimate Report and REO Status Report received from the
Special Servicer pursuant to Section 3.12(b); (B) a CSSA Property File Report
and a Comparative Financial Status Report, each with the required
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information as of the end of the preceding calendar month (in each case
combining the reports prepared by the Special Servicer and the Master Servicer);
(C) a Loan Payoff Notification Report and Delinquent Loan Status Report, each
with the required information as of such Determination Date (in each case
combining the reports prepared by the Special Servicer and the Master Servicer);
and (D) a Watch List Report with the required information as of such
Determination Date.
(d) The Special Servicer will deliver to the Master Servicer the reports
set forth in Section 3.12(b) and this Section 3.12(d) and the Master Servicer
shall deliver to the Trustee the reports set forth in Section 3.12 in an
electronic format reasonably acceptable to the Special Servicer and the Master
Servicer with respect to the reports set forth in Section 3.12(b) and this
Section 3.12(d), and the Master Servicer and the Trustee with respect to the
reports set forth in Section 3.12(c). The Master Servicer may, absent manifest
error, conclusively rely on the reports to be provided by the Special Servicer
pursuant to Section 3.12(b) and this Section 3.12(d). The Trustee may, absent
manifest error, conclusively rely on the CSSA Loan File Report to be provided by
the Master Servicer pursuant to Section 4.02(b). In the case of information or
reports to be furnished by the Master Servicer to the Trustee pursuant to this
Section 3.12, to the extent that such information is based on reports to be
provided by the Special Servicer pursuant to Section 3.12(b) and this Section
3.12(d) and to the extent that such reports are to be prepared and delivered by
the Special Servicer pursuant to Section 3.12(b) and this Section 3.12(d), the
Master Servicer shall have no obligation to provide such information or reports
until it has received such information or reports from the Special Servicer and
the Master Servicer shall not be in default hereunder due to a delay in
providing the reports required by this Section 3.12 to the extent caused by the
Special Servicer's failure to timely provide any report required under Section
3.12(b) and this Section 3.12(d) of this Agreement.
The Special Servicer, in the case of any Specially Serviced Mortgage Loan
and REO Loan, and the Master Servicer, in the case of all other Mortgage Loans
shall each consistent with the Servicing Standard, endeavor to obtain quarterly
and annual operating statements and rent rolls with respect to the related
Mortgage Loans and REO Properties, which efforts shall include in the case of
Mortgage Loans, a letter sent to the related Mortgagor each quarter (followed up
with telephone calls) requesting such quarterly and annual operating statements
and rent rolls until they are received to the extent such action is consistent
with applicable law.
The Special Servicer shall, promptly following receipt, deliver copies of
the operating statements and rent rolls received or obtained by it to the Master
Servicer, and the Master Servicer shall promptly deliver copies of the operating
statements and rent rolls received or obtained by it to the Trustee, the Special
Servicer or the Controlling Class Representative in each case upon request.
Within 30 days after receipt by the Master Servicer or the Special
Servicer of any annual operating statements with respect to any Mortgaged
Property or REO Property, as applicable, each of the Master Servicer and the
Special Servicer shall prepare or update and,
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with respect to any NOI Adjustment Worksheet prepared or updated by the Special
Servicer, forward to the Master Servicer, an NOI Adjustment Worksheet for such
Mortgaged Property or REO Property (with the annual operating statements
attached thereto as an exhibit).
The Special Servicer with respect to each Specially Serviced Mortgage Loan
and REO Loan, and the Master Servicer with respect to each other Mortgage Loan,
shall each prepare and maintain and forward to each other one Operating
Statement Analysis for each Mortgaged Property and REO Property, as applicable.
The Operating Statement Analysis for each Mortgaged Property and REO Property is
to be updated by each of the Master Servicer and the Special Servicer, as
applicable, within thirty days after its respective receipt of updated operating
statements for such Mortgaged Property or REO Property, as the case may be. The
Master Servicer and the Special Servicer shall each use the "Normalized" column
from the NOI Adjustment Worksheet for any Mortgaged Property or REO Property, as
the case may be, to update the corresponding Operating Statement Analysis and
shall use any operating statements received with respect to any Mortgaged
Property or REO property, as the case may be, to prepare the NOI Adjustment
Worksheet for such property. Copies of Operating Statement Analyses and NOI
Adjustment Worksheets are to be made available by the Master Servicer to the
Trustee, the Special Servicer or the Controlling Class Representative in each
case upon request.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver to the
Trustee, the Underwriters, and the Rating Agencies, and, in the case of the
Special Servicer, to the Master Servicer, on or before April 30 of each year,
beginning April 30, 2000, an Officers' Certificate stating, as to each signer
thereof, that (i) a review of the activities of the Master Servicer or the
Special Servicer, as the case may be, during the preceding calendar year and of
its performance under this Agreement has been made under such officer's
supervision, (ii) to the best of such officer's knowledge, based on such review,
the Master Servicer or the Special Servicer, as the case may be, has fulfilled
all of its obligations under this Agreement in all material respects throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof and (iii) the Master Servicer or the Special Servicer, as the
case may be, has received no notice regarding qualification, or challenging the
status, of REMIC I, REMIC II, REMIC III or REMIC IV (if any) as a REMIC under
the REMIC Provisions from the Internal Revenue Service or any other governmental
agency or body or, if it has received any such notice, specifying the details
thereof. The Master Servicer and Special Servicer shall deliver a copy of such
Officer's Certificate to the Depositor.
SECTION 3.14. Reports by Independent Public Accountants.
On or before April 30 of each year, beginning April 30, 2000 each of the
Master Servicer and the Special Servicer at its expense shall cause a firm of
Independent public accountants (which may also render other services to the
Master Servicer or the Special Servicer) that is a member of the American
Institute of Certified Public Accountants to furnish
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a statement to the Trustee, Underwriters, Rating Agencies, Depositor and, in the
case of the Special Servicer, to the Master Servicer to the effect that such
firm has examined the servicing operations of the Master Servicer or the Special
Servicer, as the case may be, for the previous calendar year (except that the
first such report shall cover the period from the Closing Date through December
31, 1999) and that, on the basis of such examination, conducted substantially in
compliance with USAP, such firm confirms that the Master Servicer or the Special
Servicer, as the case may be, complied with the minimum servicing standards
identified in USAP, in all material respects, except for such significant
exceptions or errors in records that, in the opinion of such firm, the USAP
requires it to report. In rendering such statement, such firm may rely, as to
matters relating to direct servicing of mortgage loans by Sub-Servicers, upon
comparable statements for examinations conducted substantially in compliance
with the Uniform Single Audit Program for Mortgage Bankers (rendered within one
year of such statement) of independent public accountants with respect to the
related Sub-Servicer.
SECTION 3.15. Access to Certain Information.
(a) Upon ten days prior written notice, the Master Servicer (with respect
to the items in clauses (a), (b), (c), (d), (e), (f), (h) and (i) below), the
Special Servicer (with respect to the items in clauses (d), (e), (f), (g), (h)
and (i) below) and the Trustee (with respect to the items in clause (i) below
and to the extent any other items are in its possession) shall make available at
their respective offices responsible for administration of the Mortgage Loans
(or in the case of Norwest Bank Minnesota, National Association, at its
Corporate Trust Office, except with respect to item (g), which will be
maintained at its offices in New York or Minnesota), during normal business
hours, for review by any Certificate Owner or Certificateholder or any person
identified by a Certificate Owner or Certificateholder or its designated agent
to the Trustee, the Master Servicer or the Special Servicer, as the case may be,
as a prospective transferee of any Certificate or interest therein, the Trustee,
the Rating Agencies, the Underwriters and anyone specified thereby and the
Depositor originals or copies of the following items: (a) this Agreement and any
amendments thereto, (b) all Distribution Date Statements delivered to holders of
the relevant Class of Certificates since the Closing Date and all reports,
statements and analyses delivered by the Master Servicer since the Closing Date
pursuant to Section 3.12(c), (c) all Officers' Certificates delivered by the
Master Servicer or the Special Servicer since the Closing Date pursuant to
Section 3.13, (d) all accountants' reports delivered to the Master Servicer in
respect of itself or the Special Servicer since the Closing Date as described in
Section 3.14, (e) the most recent property inspection report prepared by or on
behalf of the Master Servicer in respect of each Mortgaged Property and any
Environmental Assessments prepared pursuant to Section 3.09, (f) the most recent
Mortgaged Property annual operating statements and rent roll, if any, collected
by or on behalf of the Master Servicer, (g) any and all modifications, waivers
and amendments of the terms of a Mortgage Loan entered into by the Special
Servicer and the Asset Status Report prepared pursuant to Section 3.21(d), (h)
the Servicing File relating to each Mortgage Loan and (i) any and all Officers'
Certificates and other evidence delivered by the Master Servicer or the Special
Servicer, as the case may be, to support its determination that any Advance was
or, if made, would be a Nonrecoverable Advance pursuant to Section 3.20(d)
including appraisals
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affixed thereto and any Required Appraisal prepared pursuant to Section 3.09(a).
Copies of any and all of the foregoing items will be available from the Master
Servicer or the Special Servicer, as the case may be, upon request and shall be
provided to any of the Rating Agencies at no cost pursuant to any of their
requests. Upon request, the Trustee shall deliver to each Holder of the Class F,
Class G and Class H Certificates copies of each of the reports and information
specified in clauses (a) through (i) (to the extent such information has been
delivered to the Trustee) provided that such requesting Holder shall pay all
reasonable costs of duplicating and delivering such reports and information.
In connection with providing access to or copies of the items described in
the preceding paragraph pursuant to this Section 3.15, the Trustee shall
require: (a) in the case of Certificate Owners, a confirmation executed by the
requesting Person substantially in the form of Exhibit X-1 hereto (or such other
form as may be reasonably acceptable to the Trustee) generally to the effect
that such Person is a beneficial holder of Book-Entry Certificates and, subject
to the last sentence of this paragraph, will keep such information confidential
(except that such Certificate Owner may provide such information to any other
Person that holds or is contemplating the purchase of any Certificate or
interest therein, provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential); and (b) in the case of a prospective purchaser of a
Certificate or an interest therein, confirmation executed by the requesting
Person substantially in the form of Exhibit X-2 hereto (or such other form as
may be reasonably acceptable to the Trustee) 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, subject to the last sentence of this paragraph, will otherwise
keep such information confidential. The Holders of the Certificates, by their
acceptance thereof, will be deemed to have agreed, subject to the last sentence
of this paragraph, to keep such information confidential (except that any Holder
may provide such information obtained by it to any other Person that holds or is
contemplating the purchase of any Certificate or interest therein, provided that
such other Person confirms in writing such ownership interest or prospective
ownership interest and agrees to keep such information confidential).
Notwithstanding the foregoing, no Certificateholder, Certificate Owner or
prospective Certificateholder or Certificate Owner shall be obligated to keep
confidential any information received from the Trustee pursuant to this Section
3.15 that has previously been made available via the Trustee's Internet Website
or has previously been filed with the Commission, and the Trustee shall not
require either of the certifications contemplated by the second preceding
sentence in connection with providing any information pursuant to this Section
3.15 that has previously been made available via the Trustee's Internet Website
or has previously been filed with the Commission.
Each of the Master Servicer and the Special Servicer shall afford to the
Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC and any
other banking or insurance regulatory authority that may exercise authority over
any Certificateholder, access to any records regarding the Mortgage Loans and
the servicing thereof within its control, except to the extent it is prohibited
from doing so by applicable law or contract or to the extent such information is
subject to a privilege under applicable law to be asserted on behalf of the
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Certificateholders. Such access shall be afforded 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.
The Trustee, the Master Servicer, the Special Servicer and the
Underwriters may require payment from the Certificateholder or Certificate Owner
of a sum sufficient to cover the reasonable costs and expenses of providing any
such information or access pursuant to this Section 3.15 to, or at the request
of, the Certificateholders or Certificate Owners or prospective transferees,
including, without limitation, copy charges and, in the case of
Certificateholders or Certificate Owners requiring on site review in excess of
three Business Days, reasonable fees for employee time and for space.
(b) After the Transition Date, the Trustee will and the Master Servicer
may but is not required to make available each month, to any interested party
(i) the Distribution Date Statement via its respective Internet Website, in the
case of the Trustee, the Trustee's electronic bulletin board and fax-on-demand
service and (ii) as a convenience for interested parties (and not in furtherance
of the distribution of the Prospectus or the Prospectus Supplement under the
securities laws), the Prospectus, the Prospectus Supplement and this Agreement
on its respective Internet website. In addition, after the Transition Date the
Trustee will and the Master Servicer may but is not required to make available
each month the Distribution Date Statement and the Unrestricted Servicer
Reports, the CSSA Loan File Report and the CSSA loan setup file to any
interested party on their respective Internet websites. The Trustee will make
available each month, and the Master Servicer may but shall not be required to
make available each month, (i) the Restricted Servicer Reports, (ii) prior to
the Transition Date, the Distribution Date Statement, the CSSA Loan File Report
and the CSSA loan setup file, and (iii) the CSSA Property File Report to any
Privileged Person via the Trustee's and the Master Servicer's respective
Internet Websites with the use of a password provided by the Trustee or the
Master Servicer to such Privileged Person upon receipt by the Trustee or the
Master Servicer from such Person of a certification in the form of Exhibit K;
provided that the Rating Agencies, the Depositor, the parties hereto and the
Underwriters will not need to provide such certification to receive a password
from the Trustee. In connection with providing access to the Trustee's Internet
website or electronic bulletin board or the Master Servicer's Internet website,
the Trustee or the Master Servicer, as applicable, may require registration and
the acceptance of a disclaimer.
If three or more Holders or the Controlling Class Representative
(hereinafter referred to as "Applicants" with a single Person which (together
with its Affiliates) is the Holder of more than one Class of Certificates being
viewed as a single Applicant for these purposes) apply in writing to the
Trustee, and such application states that the Applicants' desire to communicate
with other Holders 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, send, at the Applicants' expense,
the written communication proffered by the Applicants to all Certificateholders
at their addresses as they appear in the Certificate Register.
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SECTION 3.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or certificate of
sale shall be issued to the Trustee or its nominee on behalf of the
Certificateholders. The Special Servicer, on behalf of the Trust Fund, shall
sell any REO Property by the end of the third year following the calendar year
in which REMIC I acquires ownership of such REO Property for purposes of Section
860G(a)(8) of the Code, unless the Special Servicer either (i) applies for, more
than sixty days prior to the end of such third succeeding year, and 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 an Opinion of Counsel,
addressed to the Trustee, the Special Servicer and the Master Servicer, to the
effect that the holding by REMIC I of such REO Property subsequent to the end of
such third succeeding year will not result in the imposition of taxes on
"prohibited transactions" (as defined in Section 860F of the Code) of any of
REMIC I, REMIC II, REMIC III or REMIC IV (if any) or cause any of REMIC I, REMIC
II, REMIC III or REMIC IV (if any) 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 extended period as is permitted by such REO Extension or such Opinion of
Counsel, as the case may be. Any expense incurred by the Special Servicer in
connection with its obtaining 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 first be
payable from the related REO Account to the extent of available funds and then
be a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds collected and
received in connection with any REO Property separate and apart from its own
funds and general assets. If an REO Acquisition shall occur, the Special
Servicer shall establish and maintain one or more accounts (collectively, the
"REO Account"), held on behalf of the Trustee in trust for the benefit of the
Certificateholders, for the retention of revenues and other proceeds derived
from each REO Property. The REO Account shall be an Eligible Account. The
Special Servicer shall deposit, or cause to be deposited, in the REO Account,
upon receipt, all REO Revenues, Insurance Proceeds and Liquidation Proceeds
received in respect of an REO Property. Funds in the REO Account only may be
invested in Permitted Investments in accordance with Section 3.06. The Special
Servicer shall be entitled to make withdrawals from the REO Account to pay
itself, as additional servicing compensation in accordance with Section 3.11(d),
interest and investment income earned in respect of amounts held in the REO
Account as provided in Section 3.06(b) (but only to the extent of the Net
Investment Earnings with respect to the REO Account for any Collection Period).
The Special Servicer shall give written notice to the Trustee and the Master
Servicer of the location of the REO Account when first established and of the
new location of the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, maintenance and disposition of
any REO
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Property, but only to the extent of amounts on deposit in the REO Account
relating to such REO Property (including any monthly reserve or escrow amounts
necessary to accumulate sufficient funds for taxes, insurance and anticipated
capital expenditures (the "Impound Reserve")). On each Determination Date, the
Special Servicer shall withdraw from the REO Account and deposit into the
Certificate Account or deliver to the Master Servicer or such other Person as
may be directed by 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 the most recently ended Collection Period, net of any
withdrawals made out of such amounts pursuant to the preceding sentence;
provided that in addition to the Impound Reserve 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
and maintenance of the related REO Property (including without limitation the
creation of a reasonable reserve for repairs, replacements and other related
expenses), such reserve not to exceed $10,000 with respect to each such REO
Property or to cover a period of more than twelve months.
(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). The
Special Servicer shall provide the Master Servicer any information with respect
to the REO Account as is reasonably requested by the Master Servicer.
SECTION 3.17. Management of REO Property.
(a) The terms of this Section 3.17(a) shall only take effect in the event
the Class F, Class G and Class H Certificates are no longer outstanding. Prior
to the acquisition of title to a Mortgaged Property, the Special Servicer shall
review the operation of such Mortgaged Property and determine the nature of the
income that would be derived from such property if it were acquired by the Trust
Fund. If the Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged
Property would be subject to tax as "net income from foreclosure property"
within the meaning of the REMIC Provisions or would be subject to the tax
imposed on "prohibited transactions" under Section 860F of the Code
(either such tax referred to herein as an "REO Tax"), such Mortgaged
Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such
property would not result in income subject to an REO Tax, then the
Special Servicer may (provided, that in the good faith and reasonable
judgment of the Special Servicer, it is
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commercially feasible) acquire such Mortgaged Property as REO Property and
so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax and
that no commercially feasible means exists to operate such property as REO
Property without the Trust Fund incurring or possibly incurring an REO Tax
on income from such property, the Special Servicer shall deliver to the
REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to
manage such property as REO Property. Such plan shall include potential
sources of income, and to the extent commercially feasible, estimates of
the amount of income from each such source. Within a reasonable period of
time after receipt of such plan, the REMIC Administrator shall consult
with the Special Servicer and shall advise the Special Servicer of the
REMIC Administrator's federal income tax reporting position with respect
to the various sources of income that the Trust Fund would derive under
the Proposed Plan. In addition, the REMIC Administrator shall (to the
extent reasonably possible) advise the Special Servicer of the estimated
amount of taxes that the Trust Fund would be required to pay with respect
to each such source of income. After receiving the information described
in the two preceding sentences from the REMIC Administrator, the Special
Servicer shall either (A) implement the Proposed Plan (after acquiring the
respective Mortgaged Property as REO Property) or (B) manage and operate
such property in a manner that would not result in the imposition of an
REO Tax on the income derived from such property. All of the REMIC
Administrator's expenses (including any fees and expenses of counsel or
other experts reasonably retained by it) incurred pursuant to this section
shall be reimbursed to it from the Trust Fund in accordance with Section
10.01(f).
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall be based on the Servicing Standard and in any case on
the good faith and reasonable judgment of the Special Servicer as to which means
would be in the best interest of the Certificateholders by maximizing (to the
extent commercially feasible and consistent with Section 3.17(b)) the net
after-tax REO Revenues received by the Trust Fund with respect to such property
and, to the extent consistent with the foregoing, in the same manner as would
prudent mortgage loan servicers and asset managers operating acquired mortgaged
property comparable to the respective Mortgaged Property. Both the Special
Servicer and the REMIC Administrator may, at the expense of the Trust Fund
payable pursuant to Section 3.05(a)(xiii) consult with counsel.
(b) If title to any REO Property is acquired, the Special Servicer shall
manage, conserve, protect and operate such REO Property for the benefit of the
Certificateholders solely for the purpose of its prompt disposition and sale in
a manner that does not and will not cause such REO Property to fail to qualify
as "foreclosure property" within the meaning of Section 860G(a)(8) of the Code
or, except as contemplated by Section
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3.17(a), either result in the receipt by REMIC I, REMIC II, REMIC III or REMIC
IV (if any) of any "income from non-permitted assets" within the meaning of
Section 860F(a)(2)(B) of the Code or result in an Adverse REMIC Event. 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 consistent
with the Servicing Standard and, consistent therewith, shall withdraw from the
REO Account, to the extent of amounts on deposit therein with respect to any REO
Property, funds necessary for the proper operation, management, maintenance and
disposition of such REO Property, including without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore 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 the preceding sentence
with respect to such REO Property, the Master Servicer, subject to the second
paragraph of Section 3.03(c), shall make Servicing Advances in such amounts as
are necessary for such purposes unless (as evidenced by an Officers' Certificate
delivered to the Trustee and the Master Servicer) the Master Servicer would not
make such advances if the Master Servicer owned such REO Property or the Master
Servicer determines, in accordance with the Servicing Standard, that such
payment would be a Nonrecoverable Advance; provided, however, that the Master
Servicer may make any such Servicing Advance without regard to recoverability if
it is a necessary fee or expense incurred in connection with the defense or
prosecution of legal proceedings.
(c) The Special Servicer may contract with any Independent Contractor for
the operation and management of any REO Property, 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
expenses of the Trust Fund) shall be reasonable and customary in
consideration of the nature and locality of the REO Property;
(iii) except as permitted under Section 3.17(a), any such contract
shall require, or shall be administered to require, that the Independent
Contractor, in a timely manner, (A) pay all costs and expenses incurred in
connection with the operation and management of such REO Property,
including, without limitation, those listed in Section 3.17(b) above, and
(B) except to the extent that such
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revenues are derived from any services rendered by the Independent
Contractor to tenants of the REO Property that are not customarily
furnished or rendered in connection with the rental of real property
(within the meaning of Section 1.856-4(b)(5) of the Treasury Regulations
or any successor provision), 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. No agreement entered into pursuant to this
Section 3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of
Section 3.22.
SECTION 3.18. Sale of Mortgage Loans and REO Properties.
(a) The Master Servicer, the Special Servicer or the Trustee 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(a),
2.02(b) and 9.01.
(b) Subject to Sections 2.03(a) and 2.02(b), if the Special Servicer has
determined in good faith that any Defaulted Mortgage Loan will become subject to
foreclosure proceedings, the Special Servicer shall promptly so notify in
writing the Trustee and the Master Servicer, and the Trustee, following its
receipt of such notice, shall, within 10 days after receipt of such notice,
notify the Majority Subordinate Certificateholder. The Majority Subordinate
Certificateholder may at its option purchase from the Trust Fund, at a price
equal to the Purchase Price, any such Mortgage Loan. The Purchase Price for any
Mortgage Loan purchased under this paragraph (b) shall be deposited into the
Certificate Account, and the Custodian, upon receipt of an Officers' Certificate
from the Master Servicer to the effect that such deposit has been made, shall
release or cause to be released to the Majority Subordinate Certificateholder
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 Majority Subordinate
Certificateholder ownership of such Mortgage Loan. In connection with any such
purchase, the Special Servicer shall deliver the related Servicing File to the
Majority Subordinate Certificateholder.
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(c) If the Majority Subordinate Certificateholder has not purchased any
Defaulted Mortgage Loan within 30 days of its having received notice in respect
thereof pursuant to Section 3.18(b) above, either the Master Servicer or the
Special Servicer (with preference given to the Special Servicer) may at its
option purchase such Mortgage Loan from the Trust Fund, 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
Custodian, upon receipt of an Officers' 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) Subject to Section 6.11, the Special Servicer may offer to sell any
Defaulted Mortgage Loan not otherwise purchased pursuant to Sections 3.18(b) and
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 Fund. 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 and condition, if liability
for breach thereof is limited to recourse against the Trust Fund) for a period
of not less than 10 days. Unless the Special Servicer determines that acceptance
of any bid would not be in the best economic interests of the
Certificateholders, the Special Servicer shall accept the highest cash bid
received from any Person that constitutes a fair price for such Mortgage Loan.
In the absence of any bid determined as provided below to be fair, the Special
Servicer shall proceed with respect to such Defaulted Mortgage Loan in
accordance with Section 3.09.
Subject to Section 6.11, the Special Servicer shall use its best efforts
to solicit bids for each REO Property in such manner as will be reasonably
likely to realize a fair price within the time period provided for by Section
3.16(a). The Special Servicer shall accept the first (and, if multiple bids are
received contemporaneously or subsequently, the highest, provided that the
Special Servicer is not obligated to the first bidder) cash bid received from
any Person that constitutes a fair price for such REO Property. If the Special
Servicer reasonably believes that it will be unable to realize a fair price for
any REO Property within the time constraints imposed by Section 3.16(a), the
Special Servicer shall dispose of such REO Property upon such terms and
conditions as the Special Servicer shall deem necessary and desirable to
maximize the recovery thereon under the circumstances and, in connection
therewith, shall accept the highest outstanding cash bid, regardless of from
whom received.
The Special Servicer shall give the Trustee and the Master Servicer not
less than three Business Days' prior written notice of its intention to sell any
Mortgage Loan or REO Property pursuant to this Section 3.18(d). No Interested
Person shall be obligated to submit a bid to purchase any such Mortgage Loan or
REO Property, and notwithstanding anything to
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the contrary herein, neither the Trustee, in its individual capacity, nor any of
its Affiliates may bid for or purchase any Defaulted Mortgage Loan or any REO
Property pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
3.18(d), shall be determined by the Special Servicer (except as otherwise
provided below in this Section 3.18(e)). In determining whether any bid received
from an Interested Person represents a fair price for any such Mortgage Loan or
REO Property, the Special Servicer shall be supplied with and may rely on a
narrative appraisal prepared at the expense of the Trust Fund by an Independent
Appraiser, retained by the Special Servicer. (The Special Servicer may rely on a
certification of any bidder to the effect that such bidder is not an Interested
Person.) Such appraiser shall be selected by the Special Servicer if the Special
Servicer is not bidding with respect to a Defaulted Mortgage Loan or REO
Property and shall be selected by the Master Servicer if the Special Servicer is
bidding. (The Master Servicer shall not bid with respect to a Defaulted Mortgage
Loan or REO Property if the Special Servicer has informed it that the Special
Servicer intends to submit a bid.) Where any Interested Person is among those
bidding with respect to a Mortgage Loan or REO Property, the Special Servicer
shall require that all bids be submitted in writing and be accompanied by a
refundable deposit of cash in an amount equal to 5% of the bid amount. In
determining whether any bid from a Person other than an Interested Person or
from an Interested Person other than the Special Servicer 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 described above
and any appraisal that it may have obtained pursuant to Section 3.09(a)), and
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). The Purchase Price for any such Mortgage Loan or
REO Property shall in all cases be deemed a fair price. Notwithstanding the
other provisions of this Section 3.18 (but excluding a purchase pursuant to
Section 3.18(c)), no cash bid from the Master Servicer, Special Servicer or any
of their Affiliates thereof shall constitute a fair price for any Defaulted
Mortgage Loan or REO Property unless such bid is the highest bid received and at
least two independent bids (not including the bid of the Master Servicer,
Special Servicer or any Affiliate) have been received. In the event the bid of
the Special Servicer or any Affiliate is the only bid received or is the higher
of only two bids received, then additional bids shall be solicited. If an
additional bid or bids are received and the original bid of the Special Servicer
or any Affiliate is the highest of all bids received, then the bid of the
Special Servicer or such Affiliate shall no longer be deemed not to constitute a
fair price.
(f) Subject to Sections 3.18(a) through 3.18(e) above and Section 6.11,
the Special Servicer shall act on behalf of the Trustee in negotiating with
independent third parties 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 bidders, and may retain,
fees that approximate the Special Servicer's actual costs in the
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preparation and delivery of information pertaining to such sales or evaluating
bids without obligation to deposit such amounts into the Certificate Account.
Any sale of a Defaulted Mortgage Loan or any REO Property shall be final,
without recourse to the Trustee or the Trust Fund and without representations
and warranties of title and condition, unless liability for breach thereof is
limited to recourse against the Trust Fund, and if such sale is consummated in
accordance with the terms of this Agreement, neither the Special Servicer nor
the Trustee shall have any liability to any Certificateholder with respect to
the purchase price therefor accepted by the Special Servicer or the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for
cash only (unless changes in the REMIC Provisions or authoritative
interpretations thereof made or issued subsequent to the Startup Day allow a
sale for other consideration).
(h) The Special Servicer shall not be obligated by any of the foregoing
paragraphs of this Section 3.18 to accept the highest bid if the Special
Servicer determines, in accordance with the Servicing Standard, that rejection
of such bid would be in the best interests of the Certificateholders. In
addition, the Special Servicer may accept a lower bid (from other than itself or
an Affiliate) if it determines, in accordance with the Servicing Standard, that
acceptance of such bid would be in the best interests of the Certificateholders
(for example, if the prospective buyer making the lower bid is more likely to
perform its obligations or the terms offered by the prospective buyer making the
lower bid are more favorable).
SECTION 3.19. Additional Obligations of Master Servicer and Special
Servicer.
(a) The Master Servicer shall deliver to the Paying Agent for deposit in
the Distribution Account on each P&I Advance Date, without any right of
reimbursement therefor, with respect to each Mortgage Loan (other than a
Specially Serviced Mortgage Loan) that was subject to a Principal Prepayment
during the most recently ended Collection Period creating a Prepayment Interest
Shortfall, an amount equal to the lesser of (i) the amount of the related
Prepayment Interest Shortfall and (ii) the sum of (A) the Master Servicing Fee
(calculated for this purpose only at a rate of 0.015% per annum) received by the
Master Servicer during such Collection Period on such Mortgage Loan and (B)
investment income earned by the Master Servicer on the related Principal
Prepayment during the most recently ended Collection Period.
(b) The Master Servicer shall, as to each Mortgage Loan which is secured
by the interest of the related Mortgagor under a Ground Lease, promptly (and in
any event within 60 days of the Closing Date) notify the related ground lessor
of the transfer of such Mortgage Loan to the Trust Fund 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 Master Servicer.
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SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) Subject to Sections 3.20(b) through 3.20(g) below and further subject
to Section 6.11, the Special Servicer may, on behalf of the Trustee, agree to
any modification, waiver or amendment of any term of any Mortgage Loan
(including, subject to Section 3.20(i), the lease reviews and lease consents
related thereto) without the consent of the Trustee or any Certificateholder.
(b) All modifications, waivers or amendments of any Mortgage Loan
(including, subject to Section 3.20(i), the lease reviews and lease consents
related thereto) shall be in writing and shall be considered and effected in
accordance with the Servicing Standard.
(c) Except as provided in 3.20(d) and the last sentence of Section
3.02(a), the Special Servicer, on behalf of the Trustee, shall not agree or
consent to any modification, waiver or amendment of any term of any Mortgage
Loan that would:
(i) affect the amount or timing of any related payment of principal,
interest or other amount (including Prepayment Premiums or Yield
Maintenance Charges, but excluding Penalty Interest and amounts payable as
additional servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or permit a Principal
Prepayment during any period in which the related Mortgage Note prohibits
Principal Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(d), result 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 determined by an appraisal by an Independent Appraiser
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;
(iv) permit the transfer or transfers of equity interests in the
borrower or any equity owner of the borrower that is required to be a
special purpose entity that would result, in the aggregate during the term
of the related Mortgage Loan, in a transfer greater than 49% of the total
interest in the borrower and/or any equity owner of the borrower that is
required to be a special purpose entity without the prior written
confirmation from each Rating Agency that such changes will not result in
the qualification, downgrade or withdrawal to the ratings then assigned to
the Certificates;
(v) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impair the security for such Mortgage Loan or reduce
the likelihood of timely payment of amounts due thereon; or
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(vi) impair the value or enforceability of a Lease Enhancement
Policy or RVI Policy.
(d) Notwithstanding Section 3.20(c), but subject to the third paragraph of
this Section 3.20(d) and the rights of the Controlling Class Representative set
forth in Section 6.11, the Special Servicer may (i) reduce the amounts owing
under any Specially Serviced Mortgage Loan by forgiving principal, accrued
interest or any Prepayment Premium or Yield Maintenance Charge, (ii) reduce the
amount of the monthly payment on any Specially Serviced Mortgage Loan, including
by way of a reduction in the related Mortgage Rate, (iii) forbear in the
enforcement of any right granted under any Mortgage Note or Mortgage relating to
a Specially Serviced Mortgage Loan or (iv) accept a Principal Prepayment on any
Specially Serviced Mortgage Loan during any Lockout Period; provided that (A)
the related Mortgagor is in default with respect to the Specially Serviced
Mortgage Loan or, in the reasonable, good faith judgment of the Special
Servicer, such default is reasonably foreseeable, (B) in the reasonable, good
faith judgment of the Special Servicer, such modification would increase the
recovery on the Mortgage Loan to Certificateholders on a net present value basis
(the relevant discounting of amounts that will be distributable to
Certificateholders to be performed at the related Net Mortgage Rate) and (C)
such modification, waiver or amendment would not both (1) effect an exchange or
reissuance of the Mortgage Loan under Section 1001 of the Code (and the Treasury
regulations promulgated thereunder) and (2) cause REMIC I, REMIC II, REMIC III
or REMIC IV (if any) to fail to qualify as a REMIC under the Code or result in
the imposition of any tax on "prohibited transactions" or "contributions" after
the Startup Day under the REMIC Provisions.
In addition, notwithstanding Section 3.20(c), but subject to the third
paragraph of this Section 3.20(d), the Special Servicer may extend the date on
which any Balloon Payment is scheduled to be due in respect of a Specially
Serviced Mortgage Loan if the conditions set forth in the proviso to the prior
paragraph are satisfied and the Special Servicer has obtained an appraisal in
accordance with the standards of the Appraisal Institute of the related
Mortgaged Property, performed by an Independent Appraiser, in connection with
such extension, which appraisal supports the determination of the Special
Servicer contemplated by clause (B) of the proviso to the immediately preceding
paragraph and if such Balloon Loan is an Insured Balloon Loan, that such
extension will not impair the value or enforceability of the related RVI Policy.
In no event will the Special Servicer (i) extend the maturity date of a
Mortgage Loan beyond a date that is two years prior to the Rated Final
Distribution Date, (ii) extend the maturity date of any Mortgage Loan which has
a Mortgage Rate below the prevailing interest rate for comparable loans at the
time of such modification as determined by the Special Servicer, unless (A) such
Mortgage Loan is a Balloon Loan, (B) the related Mortgagor has failed to make
the Balloon Payment at its Stated Maturity Date and (C) such Balloon Loan is not
a Specially Serviced Mortgage Loan (other than by reason of the failure to make
its Balloon Payment) and has not been delinquent with respect to a Periodic
Payment (other than the Balloon Payment) in the preceding twelve months, in
which case the Special Servicer may permit up to three one-year extensions at
the existing Mortgage Rate for such Mortgage Loan
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(provided that such limitation of extensions made at below market rate shall not
limit the ability of the Special Servicer to extend the maturity date of any
Mortgage Loan at an interest rate at or in excess to the prevailing rate for
comparable loans at the time of such modification), (iii) if the Mortgage Loan
is secured by a Ground Lease (and not by the corresponding fee simple interest),
extend the maturity date of such Mortgage Loan beyond a date which is less than
10 years prior to the expiration of the term of such Ground Lease; (iv) reduce
the Mortgage Rate to a rate below the prevailing interest rate for comparable
loans at the time of such modification, as determined by the Special Servicer;
or (v) defer interest due on any Mortgage Loan in excess of 10% of the Stated
Principal Balance of such Mortgage Loan or defer the collection of interest on
any Mortgage Loan without accruing interest on such deferred interest at a rate
at least equal to the Mortgage Rate of such Mortgage Loan.
The determination of the Special Servicer contemplated by clause (B) of
the proviso to the first paragraph of this Section 3.20(d) shall be evidenced by
an Officer's Certificate to such effect delivered to the Trustee and the Master
Servicer and describing in reasonable detail the basis for the Special
Servicer's determination. The Special Servicer shall append to such Officer's
Certificate any information including but not limited to income and expense
statements, rent rolls, property inspection reports and appraisals that support
such determination.
(e) Any payment of interest that is deferred pursuant to any modification,
waiver or amendment permitted hereunder, shall not, for purposes hereof,
including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Mortgage Loan, notwithstanding that the terms of such
modification, waiver or amendment so permit. The foregoing shall in no way limit
the Special Servicer's ability to charge and collect from the Mortgagor costs
otherwise collectible under the terms of the related Mortgage Note and this
Agreement together with interest thereon.
(f) The Special Servicer or, with respect to clause (i) below, the Master
Servicer may, as a condition to granting any request by a Mortgagor for consent,
modification, waiver or indulgence or any other matter or thing, the granting of
which is within its 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 (i) as additional
servicing compensation, a reasonable or customary fee for the additional
services performed in connection with such request, and (ii) any related costs
and expenses incurred by it. In no event shall the Special Servicer be entitled
to payment for such fees or expenses unless such payment is collected from the
related Mortgagor.
(g) The Special Servicer shall notify the Master Servicer, any related
Sub-Servicers and the Trustee, in writing, of any modification, waiver or
amendment of any term of any Mortgage Loan (including fees charged the
Mortgagor) and the date thereof, and shall deliver to the Custodian for deposit
in the related Mortgage File, an original counterpart of the agreement relating
to such modification, waiver or amendment, promptly (and in any event within ten
Business Days) following the execution thereof. Copies of each agreement whereby
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any such modification, waiver or amendment of any term of any Mortgage Loan is
effected shall be made available for review upon prior request during normal
business hours at the offices of the Special Servicer pursuant to Section
3.15(g) hereof.
(h) If, with respect to any Defeasance Loan, the Master Servicer shall
receive a notice from the related Mortgagor that it intends to prepay the
related Defeasance Loan in accordance with the terms thereof, except as set
forth below, the Master Servicer shall (a) promptly respond to such notice in a
manner which would require that the Mortgagor pledge Defeasance Collateral in
lieu of such prepayment pursuant to the terms of the related Mortgage Note, (b)
notify each Rating Agency, the Controlling Class Representative, the Trustee and
the Underwriters of the request to defease a Mortgage Loan and (c) upon the
written confirmation from each Rating Agency described in the next paragraph,
take such further action as provided in such Mortgage Note to effectuate such
defeasance, including the purchase and perfection of the Defeasance Collateral
in the name of the Trustee, as trustee for the registered holders of First Union
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, FUNB
Series 1999-C1.
Notwithstanding the above, the Master Servicer shall not permit a pledge
of Defeasance Collateral in lieu of prepayment under a Defeasance Loan if (i)
such defeasance would occur within two years of the Startup Day, (ii) such
Defeasance Loan (or any applicable agreement executed in connection with the
related defeasance) provides that the Mortgagor will be liable for any
shortfalls from the Defeasance Collateral or otherwise become subjected to
recourse liability with respect to the Defeasance Loan, (iii) such defeasance
would result in a new Mortgagor on the Defeasance Loan (unless such new
Mortgagor is acquiring the Mortgaged Property that was the initial security for
the Defeasance Loan), (iv) the Mortgagor fails to pay the expenses associated
with defeasing such Mortgage Loan (including without limitation the costs of
Opinions of Counsel and Rating Agency fees), or (v) any Rating Agency does not
confirm in writing to the Master Servicer that the acceptance of a pledge of the
Defeasance Collateral in lieu of a full prepayment will not result in a
downgrade, withdrawal or qualification of the ratings then assigned by it to any
Class of Certificates.
(i) For any Mortgage Loan other than a Specially Serviced Mortgage Loan
and subject to the rights of the Special Servicer set forth in this Section
3.20, the Master Servicer shall be responsible for any request by a Mortgagor
for the consent of the mortgagee for a modification, waiver or amendment of any
term with respect to:
(i) Approving routine leasing activity (including any subordination,
standstill and attornment agreements) with respect to leases for less than
the lesser of (a) 30,000 square feet and (b) 20% of the related Mortgaged
Property;
(ii) Approving a change of the property manager at the request of
the related Mortgagor provided that the successor property manager is not
affiliated with the Mortgagor and is a nationally or regionally recognized
manager of similar properties; provided that in the event at the time of
such modification, the principal balance of the related Mortgage Loan plus
the principal balance of
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any Mortgage Loans that are cross collateralized, cross defaulted or made
to related borrowers with the Mortgage Loan subject to such modification
exceeds $15,000,000 or exceeds 5% of the aggregate principal balance of
all Mortgage Loans, the Master Servicer shall have received written
confirmation from each Rating Agency that such changes will not result in
the qualification, downgrade or withdrawal to the ratings then assigned to
the Certificates and written consent from the Special Servicer and the
Controlling Class Representative with respect to such modification;
(iii) Approving any waiver affecting the timing of receipt of
financial statements from any Mortgagor provided that such financial
statements are delivered no less than quarterly and within 60 days of the
end of the calendar quarter;
(iv) Approving annual budgets for the related Mortgaged Property,
provided that no such budget (1) provides for the payment of operating
expenses in an amount equal to more than 110% of the amounts budgeted
therefor for the prior year or (2) provides for the payment of any
material expenses to any affiliate of the Mortgagor (other than the
payment of a management fee to any property manager if such management fee
is no more than the management fee in effect on the Cut-off Date); and
(v) Subject to other restrictions herein regarding Principal
Prepayments, waiving any provision of a Mortgage Loan requiring a
specified number of days notice prior to a Principal Prepayment.
(j) The Special Servicer shall not consent to the modification, waiver or
amendment of a Lease Enhancement Policy or RVI Policy without receiving prior
written confirmation from each Rating Agency that such modification, waiver or
amendment will not result in a qualification, downgrade or withdrawal of the
ratings on the Certificates or the prior written consent of each Rating Agency.
The Master Servicer shall not consent to any modification, waiver or amendment
of any Lease Enhancement Policy.
(k) To the extent that either the Master Servicer or Special Servicer
waives any Penalty Interest or late charge in respect of any Mortgage Loan,
whether pursuant to Section 3.02(a) or this Section 3.20, the respective amounts
of additional servicing compensation payable to the Master Servicer and the
Special Servicer out of such Penalty Interest or late charges shall be reduced
proportionately based upon the respective amounts that had been payable thereto
out of such Penalty Interest or late charges immediately prior to such waiver.
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SECTION 3.21. Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Master Servicer shall immediately give notice thereof, and shall
deliver a copy of the related Servicing File, to the Special Servicer and shall
use reasonable 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 either in the Master Servicer's or any of its directors',
officers', employees', affiliates' or agents' possession or control or otherwise
available to the Master Servicer without undue burden or expense, and reasonably
requested by the Special Servicer to enable it to assume its functions hereunder
with respect thereto without acting through a Sub-Servicer. The Master Servicer
shall use reasonable efforts to comply with the preceding sentence within five
Business Days of the occurrence of each related Servicing Transfer Event;
provided, however, if the information, documents and records requested by the
Special Servicer are not contained in the Servicing File, the Master Servicer
shall have such period of time as reasonably necessary to make such delivery.
Upon determining that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof, and shall
return the related Servicing File and all other information, documents and
records that were not part of the Servicing File when it was delivered to the
Special Servicer within five Business Days of the occurrence, to the Master
Servicer (or such other Person as may be directed by the Master Servicer) and
upon giving such notice, and returning such Servicing File, to the Master
Servicer (or such other Person as may be directed by 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.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Custodian originals of documents included within
the definition of "Mortgage File" for inclusion in the related Mortgage File
(with a copy of each such original to the Master Servicer), and copies of any
additional related Mortgage Loan information, including correspondence with the
related Mortgagor.
(c) On or before each Determination Date, the Special Servicer shall
deliver to the Master Servicer and each Rating Agency (or such other Person as
may be directed by the Master Servicer) a statement in writing and in computer
readable format (the form of such statement to be agreed upon by the Master
Servicer) describing, on a loan-by-loan and property-by-property basis, (1)
insofar as it relates to Specially Serviced Mortgage Loans and REO Properties,
the information described in clauses (x) through (xiii) of Section 4.02(a) and,
insofar as it relates to the Special Servicer, the information described in
clauses (xxiii) and (xxiv) of Section 4.02(a), (2) the amount of all payments,
Insurance Proceeds and Liquidation
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Proceeds received, and the amount of any Realized Loss incurred, with respect to
each Specially Serviced Mortgage Loan during the related Collection Period, and
the amount of all REO Revenues, Insurance Proceeds and Liquidation Proceeds
received, and the amount of any Realized Loss incurred, with respect to each REO
Property during the related Collection Period, (3) the amount, purpose and date
of all Servicing Advances made by the Special Servicer with respect to each
Specially Serviced Mortgage Loan and REO Property during the related Collection
Period and (4) such additional information relating to the Specially Serviced
Mortgage Loans and REO Properties as the Master Servicer reasonably requests to
enable it to perform its responsibilities under this Agreement. Notwithstanding
the foregoing provisions of this subsection (c), the Master Servicer shall
maintain ongoing payment records with respect to each of the Specially Serviced
Mortgage Loans and REO Properties and shall provide the Special Servicer with
any information reasonably available to the Master Servicer required by the
Special Servicer to perform its duties under this Agreement.
(d) No later than 30 days after a Mortgage Loan becomes a Specially
Serviced Mortgage Loan, the Special Servicer shall deliver to each Rating
Agency, the Trustee, the Master Servicer and the Controlling Class
Representative a report (the "Asset Status Report") with respect to such 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;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, 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 Specially Serviced 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 Appraised Value of the Mortgage Property together with the
assumptions used in the calculation thereof;
(v) summary of the Special Servicer's recommended action with
respect to such Specially Serviced Mortgage Loan; and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standard.
If within ten (10) Business Days of receiving an Asset Status Report, the
Controlling Class Representative 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, the Servicing Standard,
or the terms of the applicable Mortgage Loan documents. If the Controlling Class
Representative disapproves such Asset Status Report, the
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Special Servicer will revise such Asset Status Report and deliver to the
Controlling Class Representative, the Rating Agencies and the Master Servicer a
new Asset Status Report as soon as practicable, but in no event later than 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 Controlling Class Representative 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) may, 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 Controlling Class Representative and (ii) in
any case, shall determine whether such affirmative disapproval is not in the
best interest of all the Certificateholders pursuant to the Servicing Standard.
Upon making such determination in (ii) above, the Special Servicer shall
notify the Trustee of such rejection and deliver to the Trustee a proposed
notice to Certificateholders which shall include a copy of the Asset 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 5 days of the Trustee's sending such notice, to reject such Asset Status
Report, the Special Servicer shall implement the same. If the Asset Status
Report is rejected by a majority of the Certificateholders, the Special Servicer
shall revise such Asset Status Report as described above in this Section 3.20(e)
and provide a copy of such revised report to the Master Servicer. 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 Standard 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 Standard.
No direction of the Controlling Class Representative 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 Standard 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.
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SECTION 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer may enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of their respective obligations hereunder, provided that, in each case,
the Sub-Servicing Agreement: (i) is consistent with this Agreement in all
material respects, requires the Sub-Servicer to comply with all of the
applicable conditions of this Agreement and includes events of default with
respect to the Sub-Servicer substantially similar to the Events of Default set
forth in Section 7.01(a) hereof (other than Section 7.01(a)(x)) and shall
provide that the occurrence and continuance of an Event of Default with respect
to the Master Servicer or the Special Servicer, as applicable, shall constitute
an event of default under such Sub-Servicing Agreement; (ii) provides that if
the Master Servicer or the Special Servicer, as the case may be, shall for any
reason no longer act in such capacity hereunder (including, without limitation,
by reason of an Event of Default), the Trustee or its designee may thereupon
assume all of the rights and, except to the extent such obligations arose prior
to the date of assumption, obligations of the Master Servicer or the Special
Servicer, as the case may be, under such agreement or may terminate such
subservicing agreement without cause and without payment of any penalty or
termination fee; (iii) provides that the Trustee, for the benefit of the
Certificateholders, shall be a third party beneficiary under such agreement, but
that (except to the extent the Trustee or its designee assumes the obligations
of the Master Servicer or the Special Servicer, as the case may be, thereunder
as contemplated by the immediately preceding clause (ii)) none of the Trustee,
the Trust Fund, any successor Master Servicer or Special Servicer, as the case
may be, or any Certificateholder shall have any duties under such agreement or
any liabilities arising therefrom; (iv) permits any purchaser of a Mortgage Loan
pursuant to this Agreement to terminate such agreement with respect to such
purchased Mortgage Loan at its option and without penalty, (v) does not permit
the Sub-Servicer to enter into or consent to any modification, waiver or
amendment or otherwise take any action on behalf of the Special Servicer
contemplated by Section 3.20 hereof without the consent of such Special
Servicer, and (vi) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund. In
addition, each Sub-Servicing Agreement entered into by the Master Servicer shall
provide that such agreement shall be subject to Section 3.21 hereof with respect
to any Mortgage Loan that becomes a Specially Serviced Mortgage Loan. The Master
Servicer and the Special Servicer each shall deliver to the Trustee and to each
other copies of all Sub-Servicing Agreements, and any amendments thereto and
modifications thereof, entered into by it promptly upon its execution and
delivery of such documents. References in this Agreement to actions taken or to
be taken by the Master Servicer or the Special Servicer include actions taken or
to be taken by a Sub-Servicer on behalf of the Master Servicer or the Special
Servicer, as the case may be; and, in connection therewith, all amounts advanced
by any Sub-Servicer to satisfy the obligations of the Master Servicer or the
Special Servicer hereunder to make P&I Advances or Servicing Advances shall be
deemed to have been advanced by the Master Servicer or the Special Servicer, as
the case may be, out of its own funds and, accordingly, such P&I Advances or
Servicing Advances shall be recoverable by such Sub-Servicer in the same manner
and out of the same funds as if such Sub-Servicer were the Master Servicer or
the Special Servicer, as the case may be. For so long as they are outstanding,
Advances shall accrue interest in accordance with Sections 3.03(d) and 4.03(d),
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such interest to be allocable between the Master Servicer or the Special
Servicer, as the case may be, and such Sub-Servicer as they may agree. For
purposes of this Agreement, the Master Servicer and the Special Servicer each
shall be deemed to have received any payment when a Sub-Servicer retained by it
receives such payment. The Master Servicer and the Special Servicer each shall
notify the other, the Trustee and the Depositor in writing promptly of the
appointment by it of any Sub-Servicer.
(b) Each Sub-Servicer (i) shall be authorized to transact business in the
state or states in which the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law, and (ii) shall be an
approved conventional seller/servicer of mortgage loans for FHLMC or FNMA 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 Fund) monitor the performance and enforce the
obligations of their respective 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 pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as the Master
Servicer or the Special Servicer, as applicable, in its good faith business
judgment, would require were it the owner of the Mortgage Loans. Subject to the
terms of the related Sub-Servicing Agreement, the Master Servicer and the
Special Servicer may each have the right to remove a Sub-Servicer at any time it
considers such removal to be in the best interests of Certificateholders.
(d) If the Master Servicer is terminated and the Trustee succeeds to the
Master Servicer pursuant to Section 7.01(b), then, (i) subject to Section 7.02,
the Trustee shall use reasonable efforts to obtain a successor master servicer
that is willing to utilize each Sub-Servicer and meets the requirements of
Section 6.02 and 7.02, (ii) the parties hereto shall keep confidential the
termination rights contemplated by this paragraph (provided that this provision
is not intended to limit a potential successor's ability to review this
Agreement or the ability of the Master Servicer to disclose such provision to
the Sub-Servicers and reference this provision in the Sub-Servicing Agreements)
and (iii) the Trustee shall notify the Depositor prior to terminating any
Sub-Servicer. If the Trustee is unable to obtain a successor master servicer
that is willing to utilize each of the Sub-Servicers, then the Trustee shall use
reasonable efforts to solicit good faith bids consistent with the bid procedures
set forth in Section 7.01(c) for the primary servicing of the Mortgage Loans
covered by each Sub-Servicing Agreement, shall appoint as successor master
servicer the Person qualified hereunder in accordance with Sections 6.02 and
7.02 to act as Master Servicer that submitted the highest cash bid for such
primary servicing (or if the Trustee receives multiple bids, the bid submitted
by the Person with the highest aggregate bid for all primary servicing) and
shall deliver to each Sub-Servicer with respect to which no event of default
exists under its Sub-Servicing Agreement (other than an event of default
attributable solely to an Event of Default by the Master Servicer), its
respective Bid Allocation. Any excess proceeds from the bid shall be remitted to
the successor Master Servicer. Within 30 days after the Trustee succeeded to the
Master Servicer, if the successful bidder has not entered into this Agreement as
successor Master Servicer or no
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successful bidder was identified, the Trustee shall have no further obligations
under this Section 3.22(d) and may select any successor Master Servicer of its
choice and pursuant to the terms hereof. If at the end of bid process set forth
in this Section 3.22(d), no bid proceeds have been received, the terminated
Master Servicer shall reimburse the Trustee for all out of pocket expenses
incurred by the Trustee in connection with such bid process.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer and
the Special Servicer shall remain obligated and liable to the Trustee and the
Certificateholders for the performance of their respective obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if each alone were servicing
and administering the Mortgage Loans or REO Properties for which it is
responsible.
SECTION 3.23. Representations and Warranties of Master Servicer and
Special Servicer.
(a) The Master Servicer, in such capacity, hereby represents and warrants
to the Trustee, for its own benefit and the benefit of the Certificateholders,
and to the Depositor and the Special Servicer, as of the Closing Date, that:
(i) The Master Servicer is a national banking association, duly
organized and in good standing under the laws of the United States of
America, 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
articles of association or 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
material instrument to which it is a party or by which it is bound.
(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 receivership, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally and the
rights of creditors of banks, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
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(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 that 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, calculated on a consolidated basis.
(vii) Each officer, director, employee, consultant or advisor of the
Master Servicer with responsibilities concerning the servicing and
administration of Mortgage Loans is covered by errors and omissions
insurance in the amounts and with the coverage as, and to the extent,
required by Section 3.07(c).
(viii) The net worth of the Master Servicer (or, in the case of the
initial Master Servicer, the consolidated net worth thereof and of its
direct or indirect parent), determined in accordance with generally
accepted accounting principles, is not less than $15,000,000.
(ix) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Master Servicer of or compliance by the Master Servicer
with this Agreement or the consummation of the transactions contemplated
by this Agreement has been obtained and is effective.
(x) The Master Servicer possesses all insurance required pursuant to
Section 3.07(c) of this Agreement.
(b) The Special Servicer, in such capacity, hereby represents and warrants
to the Trustee, for its own benefit and the benefit of the Certificateholders,
and to the Depositor and the Master Servicer, as of the Closing Date, that:
(i) The Special Servicer is a corporation validly existing and in
good standing 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
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by the Special Servicer, will not violate the Special Servicer's
certificate of incorporation 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 material
instrument by which it is bound.
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special Servicer that would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(vii) Each officer, director and employee of the Special Servicer
and each consultant or advisor of the Special Servicer with
responsibilities concerning the servicing and administration of Mortgage
Loans is covered by errors and omissions insurance in the amounts and with
the coverage required by Section 3.07(c).
(viii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Special Servicer of or compliance by the Special
Servicer with this Agreement or the consummation of the transactions
contemplated by this Agreement has been obtained and is effective.
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(ix) The Special Servicer possesses all insurance required pursuant
to Section 3.07(c) of this Agreement.
(c) The representations and warranties of the Master Servicer and the
Special Servicer, set forth in Sections 3.23(a) and (b), respectively, 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
Fund remains in existence. Upon discovery by any party hereto of any breach of
any of the foregoing representations and warranties, the party discovering such
breach shall give prompt written notice to the other parties.
(d) The Master Servicer covenants that by August 31, 1999, any custom-made
software or hardware designed or purchased or licensed by the Master Servicer
and used by the Master Servicer in the course of the operation or management of,
or the compiling, reporting or generation of data required by this Agreement
will not contain any material deficiency (x) in the ability of such software or
hardware to identify correctly or perform calculations or other processing with
respect to dates after August 31, 1999 or (y) that would cause such software or
hardware to be fit no longer for the purpose for which it was intended by reason
of the changing of the date from 1999 to 2000. A breach of the covenant set
forth in this Section 3.23(d) shall constitute an Event of Default and
termination shall be the sole remedy against the Master Servicer for the breach
of this covenant.
(e) The Special Servicer covenants that by August 31, 1999, any
custom-made software or hardware designed or purchased or licensed by the
Special Servicer and used by the Special Servicer in the course of the operation
or management of, or the compiling, reporting or generation of data required by
this Agreement will not contain any material deficiency (x) in the ability of
such software or hardware to identify correctly or perform calculations or other
processing with respect to dates after August 31, 1999 or (y) that would cause
such software or hardware to be fit no longer for the purpose for which it was
intended by reason of the changing of the date from 1999 to 2000. A breach of
the covenant set forth in this Section 3.23(e) shall constitute an Event of
Default and termination shall be the sole remedy against the Special Servicer
for the breach of this covenant.
(f) The Master Servicer covenants that it will maintain the Semi-Annual
Loan Swap Agreement or an equivalent swap agreement (x) with First Union
National Bank so long as First Union National Bank maintains a long-term
counterparty rating of at least "A+" by S&P and at least "Aa3" by Moody's or (y)
if such rating is downgraded, qualified or withdrawn, with a swap counterparty
whose long-term counterparty rating is at least "A+" or the equivalent by each
Rating Agency.
SECTION 3.24. Sub-Servicing Agreement Representation and Warranty
(a) The Master Servicer, in such capacity, hereby represents and warrants
to the Trustee, for its own benefit and the benefit of the Certificateholders,
and to the Depositor and the Special Servicer, as of the Closing Date, that each
Sub-Servicing Agreement satisfies the requirements for such Sub-Servicing
Agreements set forth in Sections 3.22(a) in all material respects.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Paying Agent shall (except as otherwise
provided in Section 9.01), based on information provided by the Master Servicer
and the Special Servicer, apply amounts on deposit in the Distribution Account,
after payment of amounts payable from the Distribution Account in accordance
with Section 3.05(b)(ii) through (vii), for the following purposes and in the
following order of priority, in each case to the extent of the remaining portion
of the Available Distribution Amount:
(i) to distributions of interest to the Holders of the Senior
Certificates in an amount equal to, and pro rata in accordance with, all
Distributable Certificate Interest in respect of each Class of Senior
Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(ii) to distributions of principal to the Holders of the Class A-1
Certificates, in an amount (not to exceed the Class Principal Balance of
the Class A-1 Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date;
(iii) after the Class Principal Balance of the Class A-1
Certificates has been reduced to zero, to distributions of principal to
the Holders of the Class A-2 Certificates, in an amount (not to exceed the
Class Principal Balance of the Class A-2 Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of the Class A-1
Certificates pursuant to clause (ii) above);
(iv) to distributions to the Holders of the Class A-1 Certificates
and the Holders of the Class A-2 Certificates, pro rata in accordance
with, in an amount equal to, and in reimbursement of, all Realized Losses
and Additional Trust Fund Expenses, if any, previously allocated to each
such Class of Certificates and not previously reimbursed;
(v) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(vi) after the Class Principal Balances of the Class A-1
Certificates and the Class A-2 Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class B Certificates, in
an amount (not to exceed
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the Class Principal Balance of the Class B Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to any prior clause of this Section 4.01(a));
(vii) to distributions to the Holders of the Class B Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
B Certificates and not previously reimbursed;
(viii) to distributions of interest to the Holders of the Class C
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(ix) after the Class Principal Balance of the Class B Certificates
has 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 Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(a));
(x) to distributions to the Holders of the Class C Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
C Certificates and not previously reimbursed;
(xi) to distributions of interest to the Holders of the Class D
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class D Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xii) after the Class Principal Balance of the Class C Certificates
has 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 Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(a));
(xiii) to distributions to the Holders of the Class D Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional
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Trust Fund Expenses, if any, previously allocated to the Class D
Certificates and not previously reimbursed;
(xiv) to distributions of interest to the Holders of the Class E
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class E Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xv) after the Class Principal Balance of the Class D Certificates
has 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 Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(a));
(xvi) to distributions to the Holders of the Class E Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
E Certificates and not previously reimbursed;
(xvii) to distributions of interest to the Holders of the Class IO-2
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class IO-2 Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xviii) to distributions of interest to the Holders of the Class F
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class F Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xix) after the Class Principal Balance of the Class E Certificates
has 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 Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(a));
(xx) 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, previously allocated to the Class
F Certificates and not previously reimbursed;
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(xxi) to distributions of interest to the Holders of the Class G
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class G Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxii) after the Class Principal Balance of the Class F Certificates
has 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 Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(a));
(xxiii) 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, previously allocated to the Class
G Certificates and not previously reimbursed;
(xxiv) to distributions of interest to the Holders of Class H
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class H Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxv) after the Class Principal Balance of the Class G Certificates
has 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 Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(a));
(xxvi) 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, previously allocated to such Class
of Certificates and not previously reimbursed;
(xxvii) on and after the Transition Date, to make distributions to
the Holders of the Class R-IV Certificates, in an amount equal to the
excess, if any, of (A) the aggregate distributions deemed made in respect
of the REMIC III Regular Interests on such Distribution Date pursuant to
Section 4.01(j), over (B) the aggregate distributions deemed made in
respect of the Regular Certificates on such Distribution Date pursuant to
clauses (i) through (xxvi) above;
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(xxviii) to make distributions to the Holders of the Class R-III
Certificates, in an amount equal to the excess, if any, of (A) the
aggregate distributions deemed made in respect of the REMIC II Regular
Interests on such Distribution Date pursuant to Section 4.01(h), over (B)
the aggregate distributions deemed made in respect of the REMIC III
Regular Interests on such Distribution Date pursuant to Section 4.01(h);
(xxix) to make distributions to the Holders of the Class R-II
Certificates, up to an amount equal to the excess, if any, of (A) the
aggregate distributions deemed made in respect of the REMIC I Regular
Interests on such Distribution Date pursuant to Section 4.01(k), over (B)
the aggregate distributions deemed made in respect of the REMIC II Regular
Interests on such Distribution Date pursuant to Section 4.01(h);
(xxx) to distributions to the Holders of the Class R-I Certificates,
in an amount equal to the balance, if any, of the Available Distribution
Amount for such Distribution Date remaining after the distributions to be
made on such Distribution Date pursuant to clauses (i) through (xxix)
above;
provided that on each Distribution Date after the aggregate of Class Principal
Balances of each Class of Subordinated Certificates (other than the Class IO-2
Certificates) has been reduced to zero, the payments of principal to be made as
contemplated by clauses (ii) and (iii) above with respect to the Class A
Certificates will be made to the Holders of the respective Classes of such Class
A Certificates 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 Distribution Date. 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 reduction of the related Class Principal Balance.
All distributions of interest made in respect of the Class IO-1
Certificates on any Distribution Date pursuant to clause (i) above, shall be
deemed to have been made in respect of all the Components of such Class, pro
rata in accordance with the respective amounts of Distributable Certificate
Interest that would be payable on such Components on such Distribution Date if
each such Component were treated as a separate Class of Regular Certificates.
(b) On each Distribution Date, the Paying Agent shall withdraw from the
Distribution Account any amounts that represent Prepayment Premiums and/or Yield
Maintenance Charges actually collected on the Mortgage Loans and any REO Loans
during the related Collection Period and shall distribute each such Prepayment
Premium and/or Yield Maintenance Premium, as additional interest, as follows:
(i) first, to the Holders of the respective Classes of Sequential
Pay Certificates (other than any Excluded Class thereof) entitled to
distributions of principal pursuant to Section 4.01(a) on such
Distribution Date, up to an
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amount equal to, and pro rata based on, the Additional Yield Amounts for
each such Class of Certificates for such Distribution Date; and
(ii) second, to the Holders of the Class IO-1 Certificates, to the
extent of any remaining portion of such Prepayment Premium and/or Yield
Maintenance Charge (distributions pursuant to this clause (ii) to be
deemed allocable among the respective Components of the Class IO-1
Certificates on a pro rata basis in accordance with the respective amounts
of Accrued Component Interest in respect of such Components for the
subject Distribution Date).
(c) All distributions made with respect to each Class on each Distribution
Date shall be allocated pro rata among the outstanding Certificates in such
Class based on their respective Percentage Interests. Except as otherwise
provided below, all such distributions with respect to each Class on each
Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates), 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, in the case of
a Sequential Pay Certificate, 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 a like manner, but only upon
presentation and surrender of such Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to Certificateholders
of such final distribution. Prior to any termination of the Trust Fund pursuant
to Section 9.01, 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
Register or to any other address of which the Paying Agent was subsequently
notified in writing. If such check is returned to the Paying Agent, the Paying
Agent, directly or through an agent, shall take such reasonable steps to contact
the related Holder and deliver such check as it shall deem appropriate. Any
funds in respect of a check returned to the Paying Agent shall be set aside by
the Paying Agent and held uninvested in trust and credited to the account of the
appropriate Holder. The costs and expenses of locating the appropriate Holder
and holding such funds 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 the
Paying Agent has not, after having taken such reasonable steps, located the
related Holder by the second anniversary of the initial sending of a check, the
Paying Agent shall, subject to applicable law, distribute the unclaimed funds to
the Holders of the Class R-I Certificates.
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(d) 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 related 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 related Certificate Owners that it represents. None of
the Trustee, the Paying Agent, the Certificate Registrar, the Depositor or the
Master Servicer shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law. The Trustee and the Depositor
shall perform their respective obligations under a Letter of Representations
among the Depositor, the Trustee and the initial Depository dated as of the
Closing Date.
(e) The rights of the Certificateholders to receive distributions from the
proceeds of the Trust Fund in respect of the 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.
(f) Except as otherwise provided in Section 9.01, whenever the Paying
Agent receives written notification of or 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 Paying Agent shall, no later than five days after
the related Determination Date, mail to each Holder of record on such date of
such Class of Certificates a notice to the effect that:
(i) the Paying Agent 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
office of the Certificate Registrar or at 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(f) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent 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
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cancellation, the Paying Agent, 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 former Holder on any amount
held in trust pursuant to this paragraph. If all of the Certificates shall not
have been surrendered for cancellation by the second anniversary of the delivery
of the second notice, the Paying Agent shall, subject to applicable law,
distribute to the Holders of the Class R-I Certificates all unclaimed funds and
other assets which remain subject thereto.
(g) Notwithstanding any other provision of this Agreement, the Paying
Agent shall comply with all federal withholding requirements respecting payments
to Certificateholders of interest or original issue discount that the Paying
Agent reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Paying
Agent does withhold any amount from interest or original issue discount payments
or advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Paying Agent shall indicate the amount withheld to such
Certificateholders.
(h) All distributions made in respect of any Class of Sequential Pay
Certificates (and on the REMIC III P&I Regular Interest which has the same
alphabetical (and, if applicable, numerical) designation as such Class of
Sequential Pay Certificates) on each Distribution Date pursuant to Section
4.01(a), the first paragraph of Section 4.01(b) or Section 9.01 shall be deemed
to have first been distributed from REMIC II to REMIC III in respect of its
Corresponding REMIC II Regular Interest set forth in the Preliminary Statement
hereto; and all distributions made in respect of the Class IO-1 Certificates and
the Class IO-2 Certificates (and on the Corresponding REMIC III Components) on
each Distribution Date pursuant to Section 4.01(a), the first paragraph of
Section 4.01(b) or Section 9.01, shall be deemed to have first been distributed
from REMIC II to REMIC III in respect of such REMIC III Component's
Corresponding REMIC II Regular Interest (or in the case of the REMIC III IO-2
Component, in respect of REMIC II Regular Interests F, G and H). In each case,
if such distribution on any such Class of Regular Certificates (and on the
Corresponding REMIC III Regular Interest) was a distribution of interest, of
principal, of Prepayment Premiums or Yield Maintenance Charges or in
reimbursement of previously allocated Realized Losses and Additional Trust Fund
Expenses in respect of such Class of Regular Certificates (and on the
Corresponding REMIC III Regular Interest), then the corresponding distribution
deemed to be made on a REMIC II Regular Interest pursuant to the preceding
sentence shall be deemed to also be a distribution of interest, of principal, of
Prepayment Premiums or Yield Maintenance Charges or in reimbursement of
previously allocated Realized Losses and Additional Trust Fund Expenses, as the
case may be, in respect of such REMIC II Regular Interest.
(i) On and after the Transition Date, all distributions made in respect of
any Class of Sequential Pay Certificates (and on the REMIC IV P&I Regular
Interest which has the
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same alphabetical (and, if applicable, numerical) designation as such Class of
Sequential Pay Certificates) on each Distribution Date pursuant to Section
4.01(a), the first paragraph of Section 4.01(b) or Section 9.01 shall be deemed
to have first been distributed from REMIC III to REMIC IV in respect of the
REMIC III P&I Regular Interest which corresponds to such REMIC IV P&I Regular
Interest as set forth in the Preliminary Statement hereto; all distributions
made in respect of REMIC IV Components IO-A-1, IO-A-2, IO-B, IO-C, IO-D and IO-E
on each Distribution Date on and after the Transition Date pursuant to Section
4.01(a), the first paragraph of Section 4.01(b) or Section 9.01, shall be deemed
to have first been distributed from REMIC III to REMIC IV in respect of the
REMIC III P&I Regular Interest which corresponds to such REMIC IV Component as
set forth in the Preliminary Statement hereto; all distributions made in respect
of REMIC IV Components IO-F, IO-G and IO-H on each Distribution Date on and
after the Transition Date pursuant to Section 4.01(a), the first paragraph of
Section 4.01(b) or Section 9.01 shall be deemed to have first been distributed
from REMIC III to REMIC IV in respect of the REMIC III Component that bears the
same alphabetical designation as such respective REMIC IV Component; and all
distributions made in respect of the REMIC IV IO-2 Component on each
Distribution Date after the Transition Date pursuant to Sections 4.01(a) and
9.01 shall be deemed to have first been distributed from REMIC III to REMIC IV
in respect of the REMIC III IO-2 Component. In each case, if such distribution
was a distribution of interest, of principal, of Prepayment Premiums or Yield
Maintenance Charges or in reimbursement of previously allocated Realized Losses
and Additional Trust Fund Expenses in respect of such REMIC IV P&I Regular
Interest or REMIC IV Component, then the corresponding distribution deemed to be
made on the corresponding REMIC III Regular Interest pursuant to the preceding
sentence shall be deemed to also be a distribution of interest, of principal, of
Prepayment Premiums or Yield Maintenance Charges or in reimbursement of
previously allocated Realized Losses and Additional Trust Fund Expenses, as the
case may be, in respect of such corresponding REMIC III Regular Interest.
(j) All distributions made in respect of any REMIC III P&I Regular
Interest on each Distribution Date pursuant to Section 4.01(a), the first
paragraph of Section 4.01(b) or Section 9.01 shall be deemed to have first been
distributed from REMIC II to REMIC III in respect of the REMIC II Regular
Interest which corresponds to such REMIC III P&I Regular Interest as set forth
in the Preliminary Statement hereto; and all distributions made in respect of a
REMIC III Component on each Distribution Date pursuant to Section 4.01(a), the
first paragraph of Section 4.01(b) or Section 9.01, shall be deemed to have
first been distributed from REMIC II to REMIC III in respect of the REMIC II
Regular Interest which corresponds to such REMIC III Component as set forth in
the Preliminary Statement hereto. In each case, if such distribution was a
distribution of interest, of principal, of Prepayment Premiums or Yield
Maintenance Charges or in reimbursement of previously allocated Realized Losses
and Additional Trust Fund Expenses in respect of such REMIC III P&I Regular
Interest or REMIC III Component, then the corresponding distribution deemed to
be made on the Corresponding REMIC II Regular Interest pursuant to the preceding
sentence shall be deemed to also be a distribution of interest, of principal, of
Prepayment Premiums or Yield Maintenance Charges or in reimbursement of
previously allocated Realized Losses and Additional Trust Fund Expenses, as the
case may be, in respect of such Corresponding REMIC II Regular Interest.
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(k) On each Distribution Date, including, without limitation, the final
Distribution Date in connection with a termination of the Trust Fund, the
Available Distribution Amount for such date shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of the REMIC I Regular
Interests, in each case to the extent of the remaining portions of such funds,
for the following purposes and in the following order of priority:
(i) as deemed distributions of interest in respect of the REMIC I
Regular Interests, in an amount equal to, and pro rata in accordance with,
all REMIC Distributable Interest in respect of each such REMIC I Regular
Interest for such Distribution Date and, to the extent not previously
deemed distributed, for all prior Distribution Dates;
(ii) as deemed distributions of principal in respect of the REMIC I
Regular Interests, in an amount equal to, and pro rata in accordance with,
as to each such REMIC I Regular Interest, the excess, if any, of the REMIC
Principal Balance of such REMIC I Regular Interest outstanding immediately
prior to such Distribution Date, over the Stated Principal Balance of the
related Mortgage Loan (or successor REO Loan) that will be outstanding
immediately following such Distribution Date; and
(iii) as deemed distributions in respect of the REMIC I Regular
Interests, in an amount equal to, pro rata in accordance with, and in
reimbursement of, any Realized Losses and Additional Trust Fund Expenses
(with compounded interest), previously allocated to each such REMIC I
Regular Interest.
Any Prepayment Premiums or Yield Maintenance Charges distributed to any
Class of Regular Certificates on any Distribution Date shall, in each case, be
deemed to have been distributed from REMIC I to REMIC II in respect of the REMIC
I Regular Interest corresponding to the prepaid Mortgage Loan or REO Loan, as
the case may be, in respect of which such premium or charge was received.
SECTION 4.02. Statements to Certificateholders; CSSA Loan File Report.
(a) On each Distribution Date, the Trustee shall forward by mail (or make
available by electronic means acceptable to the recipient) to each
Certificateholder, each initial Certificate Owner and (upon written request made
to the Trustee) each subsequent Certificate Owner (as identified to the
reasonable satisfaction of the Trustee), the Depositor, the Master Servicer, the
Special Servicer, the Underwriters and each Rating Agency, a statement (a
"Distribution Date Statement"), as to the distributions made on such
Distribution Date, based on information provided to it by the Master Servicer
and the Special Servicer, setting forth:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Certificates in reduction of the Class
Principal Balance thereof;
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(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Certificates allocable to Distributable
Certificate Interest;
(iii) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular Certificates allocable to Prepayment
Premiums and/or Yield Maintenance Charges;
(iv) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Certificates in reimbursement of
previously allocated Realized Losses and Additional Trust Fund Expenses;
(v) the Available Distribution Amount for such Distribution Date;
(vi) (a) the aggregate amount of P&I Advances made in respect of
such Distribution Date pursuant to Section 4.03(a), including, without
limitation, any amounts applied pursuant to Section 4.03(a)(ii), and the
aggregate amount of unreimbursed P&I Advances that had been outstanding at
the close of business on the related Determination Date and the aggregate
amount of interest accrued and payable to the Master Servicer or the
Trustee in respect of such unreimbursed P&I Advances in accordance with
Section 4.03(d) as of the close of business on the related Determination
Date, (b) the aggregate amount of Servicing Advances as of the close of
business on the related Determination Date and (c) the aggregate amount of
all Nonrecoverable Advances as of the close of business on the related
Determination Date;
(vii) the aggregate unpaid principal balance of the Mortgage Pool
outstanding as of the close of business on the related Determination Date;
(viii) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(ix) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Loans as of the close of business on the related Determination
Date;
(x) the number, aggregate unpaid principal balance (as of the close
of business on the related Determination Date) and aggregate Stated
Principal Balance (immediately after such Distribution Date) of Mortgage
Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent
more than 89 days, and (D) as to which foreclosure proceedings have been
commenced;
(xi) as to each Mortgage Loan referred to in the preceding clause
(x) above, (A) the loan number thereof, (B) the Stated Principal Balance
thereof immediately following such Distribution Date, and (C) a brief
description of any executed loan modification;
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(xii) with respect to any Mortgage Loan as to which a Liquidation
Event occurred during the related Collection Period (other than a payment
in full), (A) the loan number thereof, (B) the aggregate of all
Liquidation Proceeds and other amounts received in connection with such
Liquidation Event (separately identifying the portion thereof allocable to
distributions on the Certificates), and (C) the amount of any Realized
Loss in connection with such Liquidation Event;
(xiii) with respect to any REO Property included in the Trust Fund
as to which a Final Recovery Determination was made during the related
Collection Period, (A) the loan number of the related Mortgage Loan, (B)
the aggregate of all Liquidation Proceeds and other amounts received in
connection with such Final Recovery Determination (separately identifying
the portion thereof allocable to distributions on the Certificates), and
(C) the amount of any Realized Loss in respect of the related REO Loan in
connection with such Final Recovery Determination;
(xiv) the Accrued Certificate Interest and Distributable Certificate
Interest in respect of each Class of Regular Certificates for such
Distribution Date;
(xv) any unpaid Distributable Certificate Interest in respect of
each Class of Regular Certificates after giving effect to the
distributions made on such Distribution Date;
(xvi) the Pass-Through Rate for each Class of Regular Certificates
for such Distribution Date;
(xvii) the Principal Distribution Amount for such Distribution Date,
separately identifying the respective components thereof (and, in the case
of any Principal Prepayment or other unscheduled collection of principal
received during the related Collection Period, the loan number for the
related Mortgage Loan and the amount of such prepayment or other
collection of principal);
(xviii) the aggregate of all Realized Losses incurred during the
related Collection Period and all Additional Trust Fund Expenses incurred
during the related Collection Period;
(xix) the aggregate of all Realized Losses and Additional Trust Fund
Expenses that were allocated on such Distribution Date;
(xx) the Class Principal Balance of each Class of Regular
Certificates (other than the Class IO-1 Certificates and the Class IO-2
Certificates) and the Component Notional Amount of each Component
outstanding immediately before and immediately after such Distribution
Date, separately identifying any
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reduction therein due to the allocation of Realized Losses and Additional
Trust Fund Expenses on such Distribution Date;
(xxi) the Certificate Factor for each Class of Regular Certificates
immediately following such Distribution Date;
(xxii) the aggregate amount of interest on P&I Advances paid to the
Master Servicer and the Trustee during the related Collection Period in
accordance with Section 4.03(d);
(xxiii) the aggregate amount of interest on Servicing Advances paid
to the Master Servicer, the Trustee and the Special Servicer during the
related Collection Period in accordance with Section 3.03(d);
(xxiv) the aggregate amount of servicing fees paid to the Master
Servicer and the Special Servicer during the related Collection Period;
and
(xxv) the loan number for each Required Appraisal Loan and any
related Appraisal Reduction Amount as of the related Determination Date;
(xxvi) the original and then current credit support levels for each
Class of Regular Certificates;
(xxvii) the original and then current ratings for each Class of
Regular Certificates;
(xxviii) the aggregate amount of Prepayment Premiums and Yield
Maintenance Charges collected during the related Collection Period; and
(xxix) the amounts, if any, actually distributed with respect to the
Class R-I Certificates, Class R-II Certificates, Class R-III Certificates
and Class R-IV Certificates (if any) on such Distribution Date.
In the case of information to be furnished pursuant to clauses (i) through
(iv) above, the amounts shall be expressed as a dollar amount in the aggregate
for all Certificates of each applicable Class and per Single Certificate. In the
case of information provided to the Trustee as a basis for information to be
furnished pursuant to clauses (x) through (xiii), and (xxiv) above, insofar as
the underlying information is solely within the control of the Special Servicer,
the Trustee and the Master Servicer may, absent manifest error, conclusively
rely on the reports to be provided by the Special Servicer.
The Trustee may rely on and shall not be responsible absent manifest error
for the content or accuracy of any information provided by third parties for
purposes of preparing the Distribution Date Statement and may affix thereto any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto).
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The Trustee shall deliver or shall cause to be delivered on each
Distribution Date either electronically or by first class mail to each
Certificateholder, the Depositor, the Underwriters, each Rating Agency, the
Special Servicer and any other Person designated in writing by the Depositor (by
hard copy, on diskette or via such other electronic medium as is mutually
acceptable to the Trustee and the recipient) a copy of the following nine
reports or in the case of reports to Persons designated in writing by the
Depositor, any of the following nine reports delivered to it by the Master
Servicer pursuant to Section 3.12(c): (i) the Delinquent Loan Status Report,
(ii) the Historical Loss Estimate Report, (iii) the Historical Loan Modification
Report, (iv) the REO Status Report, (v) the Watch List, (vi) a Loan Payoff
Notification Report, (vii) a Comparative Financial Status Report, (viii) an
Operating Statement Analysis and (ix) an NOI Adjustment Worksheet. The Trustee
shall deliver or shall cause to be delivered on each Distribution Date by first
class mail (or by electronic transmission acceptable to the recipient) to each
Certificateholder, each Certificate Owner, the Underwriters, the Depositor, each
Rating Agency and each other Person that received a Distribution Date Statement
on such Distribution Date a hard copy (or a copy in an electronic medium
acceptable to the recipient) of the CSSA Loan File Report and the CSSA Property
File Report containing information regarding each Mortgaged Property most
recently received from the Master Servicer. Absent manifest error, none of the
Master Servicer or the Special Servicer shall be responsible for the accuracy or
completeness of any information supplied to it by a borrower or third party that
is included in any reports, statements, materials or information prepared or
provided by the Master Servicer or the Special Servicer, as applicable. The
Trustee shall not be responsible absent manifest error for the accuracy or
completeness of any information supplied to it for delivery pursuant to this
Section. Neither the Trustee, the Master Servicer nor the Special Servicer shall
have any obligation to verify the accuracy or completeness of any information
provided by a Mortgagor or third party.
Within a reasonable period of time after the end of each calendar year,
the Trustee shall send to each Person who at any time during the calendar year
was a Certificateholder of record, a report summarizing on an annual basis (if
appropriate) the items provided to Certificateholders pursuant to clauses (i),
(ii), (iii) and (iv) of the description of "Distribution Date Statement" above
and such other information as may be required to enable such Certificateholders
to prepare their federal income tax returns. Such information shall include the
amount of original issue discount accrued on each Class of Certificates and
information regarding the expenses of the Trust Fund. Such requirement shall be
deemed to be satisfied to the extent such information is provided pursuant to
applicable requirements of the Code from time to time in force.
On each Distribution Date, the Trustee shall provide or make available to
The Trepp Group (at 477 Madison Avenue, 18th Floor, New York, New York 10022),
or such other address as The Trepp Group may hereafter designate), the
Distribution Date Statement and Unrestricted Servicer Reports forwarded to the
Holders of the Regular Certificates on such Distribution Date and a statement
setting forth the amounts, if any, actually distributed with respect to the
Class R-I, Class R-II, Class R-III and R-IV Certificates on such Distribution
Date.
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If any Certificate Owner does not receive through the Depository or any of
its Depository Participants any of the statements, reports and/or other written
information described above in this Section 4.02(a) that it would otherwise be
entitled to receive if it were the Holder of a Definitive Certificate evidencing
its ownership interest in the related Class of Book Entry Certificates, then the
Trustee shall mail or cause the mailing of such statements, reports and/or other
written information to such Certificate Owner upon the request of such
Certificate Owner made in writing to the Corporate Trust Office (accompanied by
current verification of such Certificate Owner's ownership interest). Such
portion of such information as may be agreed upon by the Depositor and the
Trustee shall be furnished to any such Person via overnight courier delivery or
telecopy from the Trustee; provided that the cost of such overnight courier
delivery or telecopy shall be an expense of the party requesting such
information.
The Trustee shall only be obligated to deliver the statements, reports and
information contemplated by this Section 4.02(a) to the extent it receives the
necessary underlying information from the Special Servicer or Master Servicer,
as applicable, and shall not be liable for any failure to deliver any thereof on
the prescribed due dates, to the extent caused by failure to receive timely such
underlying information. Nothing herein shall obligate the Trustee or the Master
Servicer to violate any applicable law prohibiting disclosure of information
with respect to any Mortgagor and the failure of the Trustee, Master Servicer or
the Special Servicer to disseminate information for such reason shall not be a
breach hereof.
(b) Not later than 2:00 p.m. New York City time on the second Business Day
preceding each Distribution Date the Master Servicer shall furnish to the
Trustee, the Depositor, the Special Servicer and the Underwriters, by electronic
transmission (or in such other form to which the Trustee or the Depositor, as
the case may be, and the Master Servicer may agree), with a hard copy of such
transmitted information to follow promptly, an accurate and complete CSSA Loan
File Report providing the required information for the Mortgage Loans as of such
Determination Date. The Depositor shall provide the information necessary for
the CSSA set up file.
In the performance of its obligations set forth in Section 4.05 and its
other duties hereunder, the Trustee may conclusively rely on reports provided to
it by the Master Servicer, and the Trustee shall not be responsible to
recompute, recalculate or verify the information provided to it by the Master
Servicer. In the case of information to be furnished by the Master Servicer to
the Trustee pursuant to this Section 4.02(b), insofar as such information is
solely within the control of the Special Servicer, the Master Servicer shall
have no obligation to provide such information until it has received such
information from the Special Servicer, shall not be in default hereunder due to
a delay in providing the CSSA Loan File Report caused by the Special Servicer's
failure to timely provide any report required under this Agreement and may,
absent manifest error, conclusively rely on the reports to be provided by the
Special Servicer.
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SECTION 4.03. P&I Advances.
(a) On or before 2:00 p.m., New York City time, on each P&I Advance Date,
the Master Servicer shall (i) apply amounts in the Certificate Account received
after the end of the related Collection Period or otherwise held for future
distribution to Certificateholders in subsequent months in discharge of its
obligation to make P&I Advances, (ii) subject to Section 4.03(c) below, remit
from its own funds , or (iii) remit from certain late charges and Penalty
Interest or recoveries from Advances pursuant to Section 3.11(d), to the Paying
Agent for deposit into the Distribution Account an amount equal to the aggregate
amount of P&I Advances, if any, to be made in respect of the related
Distribution Date. The Master Servicer may also make P&I Advances first from
clause (iii) and then in the form of any combination of clauses (i) and (ii)
above aggregating the total amount of P&I Advances to be made. Any amounts held
in the Certificate Account for future distribution and so used to make P&I
Advances shall be appropriately reflected in the Master Servicer's records and
replaced by the Master Servicer by deposit in the Certificate Account on or
before the next succeeding Determination Date (to the extent not previously
replaced through the deposit of Late Collections of the delinquent principal and
interest in respect of which such P&I Advances were made). If, as of 3:00 p.m.,
New York City time, on any P&I Advance 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 (704) 383-9356 (or such alternative number provided by the Master
Servicer to the Trustee in writing) and by telephone at telephone (704) 383-0535
(or such alternative number provided by the Master Servicer to the Trustee in
writing) as soon as possible, but in any event before 4:00 p.m., New York City
time, on such P&I Advance Date. If the Trustee does not receive the full amount
of such P&I Advances by 10:00 a.m., New York City time, on the related
Distribution Date, then, subject to Section 4.03(c), (i) the Trustee shall, no
later than 11:00 a.m., New York City time, on such related Distribution Date
make the portion of such P&I Advances that was required to be, but was not, made
by the Master Servicer on such P&I Advance Date, and (ii) the provisions of
Sections 7.01 and 7.02 shall apply.
(b) The aggregate amount of P&I Advances to be made by the Master Servicer
or the Trustee in respect of any Distribution Date shall, subject to Section
4.03(c) below, equal (i) the aggregate of all Scheduled Payments (other than
Balloon Payments) and any Assumed Scheduled Payments, net of related Servicing
Fees and any related Principal Recovery Fees, due or deemed due, as the case may
be, in respect of the Mortgage Loans (including, without limitation, Balloon
Mortgage Loans delinquent as to their respective Balloon Payments) and any REO
Loans on their respective Due Dates during the related Collection Period, in
each case to the extent such amount was not paid by or on behalf of the related
Mortgagor or otherwise collected (including as net income from REO Properties)
as of the close of business on the related Determination Date and (ii) with
respect to each Semi-Annual Mortgage Loan for which there is no Due Date in the
month in which such Distribution Date falls, the Semi-Annual Loan Interest
Advance Amount for such Semi-Annual
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Mortgage Loan and such Distribution Date; provided, that, (i) if the Periodic
Payment on any Mortgage Loan has been reduced in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section 3.20,
or if the final maturity on any Mortgage Loan shall be extended in connection
with a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment granted or agreed to by the Special Servicer
pursuant to Section 3.20, and the Periodic Payment due and owing during the
extension period is less than the related Assumed Scheduled Payment, then the
Master Servicer or the Trustee shall, as to such Mortgage Loan only, advance
only the amount of the Periodic Payment due and owing after taking into account
such reduction (net of related Servicing Fees and any related Principal Recovery
Fees) in the event of subsequent delinquencies thereon; and (ii) if it is
determined that an Appraisal Reduction Amount exists with respect to any
Required Appraisal Loan, then, with respect to the Distribution Date immediately
following the date of such determination and with respect to each subsequent
Distribution Date for so long as such Appraisal Reduction Amount exists with
respect to such Required Appraisal Loan, the Master Servicer or the Trustee will
be required in the event of subsequent delinquencies to advance in respect of
such Mortgage Loan only an amount equal to the product of (A) the amount of the
P&I Advance that would otherwise be required without regard to this clause (ii),
multiplied by (B) a fraction, the numerator of which is equal to the Stated
Principal Balance of such Mortgage Loan, net of such Appraisal Reduction Amount,
and the denominator of which is equal to the Stated Principal Balance of such
Mortgage Loan.
(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. The determination by the Master Servicer 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
Officers' Certificate delivered to the Trustee and the Depositor on or before
the related P&I Advance Date, setting forth the basis for such determination,
together with any other information, including Appraisals (or, if no such
Appraisal has been performed pursuant to this Section 4.03(c), a copy of an
Appraisal of the related Mortgaged Property performed within the twelve months
preceding such determination (or after a material adverse change in the
Mortgaged Property if the Master Servicer has actual knowledge of a material
adverse change in the condition of the related Mortgaged Property within such 12
month period)), related Mortgagor operating statements and financial statements,
budgets and rent rolls of the related Mortgaged Properties, engineers' reports,
environmental surveys and any similar reports that the Master Servicer may have
obtained consistent with the Servicing Standard and at the expense of the Trust
Fund, that support such determination by the Master Servicer. On the fourth
Business Day before each Distribution Date, the Special Servicer shall report to
the Master Servicer the Special Servicer's determination as to whether each P&I
Advance made with respect to any previous Distribution Date or required to be
made with respect to such Distribution Date with respect to any Specially
Serviced Mortgage Loan or REO Loan is a Nonrecoverable P&I Advance. The Master
Servicer shall be entitled to conclusively rely on such determination. The
Trustee shall be entitled to rely, conclusively, on any determination by the
Master Servicer that a P&I Advance, if made, would be a Nonrecoverable Advance
(and with respect to a P&I Advance,
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the Trustee, as applicable, shall rely on the Master Servicer's determination
that the P&I Advance would be a Nonrecoverable Advance if the Trustee determines
that it does not have sufficient time to make such determination); provided,
however, that if the Master Servicer has failed to make a P&I Advance for
reasons other than a determination by the Master Servicer that such P&I Advance
would be Nonrecoverable Advance, the Trustee shall make such Advance within the
time periods required by Section 4.03(a) unless the Trustee, in good faith,
makes a determination prior to the times specified in Section 4.03(a) that such
P&I Advance would be a Nonrecoverable Advance. The Trustee in determining
whether or not a P&I Advance previously made is, or a proposed P&I Advance, if
made, would be, a Nonrecoverable Advance shall be subject to the standards
applicable to the Master Servicer hereunder.
(d) In connection with the recovery by the Master Servicer or the Trustee
of any P&I Advance out of the Certificate Account pursuant to Section 3.05(a),
subject to the next sentence, the Master Servicer shall be entitled to pay
itself or the Trustee, as the case may be, interest at the Reimbursement Rate in
effect from time to time, compounded annually, accrued on the amount of such P&I
Advance (to the extent made with its own funds) from the date made to but not
including the date of reimbursement such interest to be payable: (i) out of late
payment charges and Penalty Interest collected on any Mortgage Loan or REO Loan
during the same Collection Period in which such P&I Advance is reimbursed; and
(ii) to the extent that such late payment charges and Penalty Interest are
insufficient, but only after the related Advance has been reimbursed pursuant to
this Agreement, out of general collections on the Mortgage Loans and REO
Properties on deposit in the Certificate Account. Under no circumstances shall
the Master Servicer or the Trustee be entitled to recover interest on any
portion of a P&I Advance represented by a Semi-Annual Loan Interest Advance
Amount so long as no payment default exists under such Semi-Annual Mortgage
Loan, and if any such payment default does exist, the Master Servicer shall be
entitled to recover interest on any such P&I Advance only from and after the Due
Date as to which such default occurred. The Master Servicer shall reimburse
itself or the Trustee, as applicable, for any outstanding P&I Advance made
thereby as soon as practicable after funds available for such purpose have been
received by the Master Servicer, 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 was received by the Master Servicer on or prior to
the related P&I Advance Date.
(e) Notwithstanding anything to the contrary set forth in Section 4.03(d),
interest will accrue on each P&I Advance made in respect of any Grace Mortgage
Loan from the end of the grace period for the related Scheduled Payment until
such P&I Advance is reimbursed.
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund
Expenses.
(a) On each Distribution Date, following all distributions to be made on
such date pursuant to Section 4.01, the Paying Agent shall allocate to the
respective Classes of Sequential Pay Certificates as follows the aggregate of
all Realized Losses and Additional
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Trust Fund Expenses that were incurred at any time following the Cut-off Date
through the end of the related Collection Period, and in any event that were not
previously allocated pursuant to this Section 4.04(a) on any prior Distribution
Date, but only to the extent that (i) the aggregate Certificate Principal
Balance of the Sequential Pay Certificates as of such Distribution Date (after
taking into account all of the distributions made on such Distribution Date
pursuant to Section 4.01), exceeds (ii) the aggregate Stated Principal Balance
of the Mortgage Pool that will be outstanding immediately following such
Distribution Date: first, to the Class H Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; second, to the Class G
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; third, to the Class F Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; fourth, to the Class E
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; fifth, to the Class D Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; sixth, to the Class C
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; seventh, to the Class B Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; eighth pro rata (based on
remaining Class Principal Balances) to the Class A-1 Certificates and the Class
A-2 Certificates, until the Class Principal Balances thereof are reduced to
zero. Any allocation of Realized Losses and Additional Trust Fund Expenses to a
Class of Regular Certificates shall be made by reducing the Class Principal
Balance thereof by the amount so allocated. All Realized Losses and Additional
Trust Fund Expenses, if any, allocated to a Class of Regular Certificates shall
be allocated among the respective Certificates of such Class in proportion to
the Percentage Interests evidenced thereby. All Realized Losses and Additional
Trust Fund Expenses, if any, that have not been allocated to the Regular
Certificates as of the Distribution Date on which the aggregate Certificate
Principal Balance of such Certificates has been reduced to zero, shall be deemed
allocated to the Residual Certificates.
(b) From the Closing Date until immediately prior to the Transition Date,
each Realized Loss and Additional Trust Fund Expense, if any, allocated to any
Class of Sequential Pay Certificates shall be deemed to have first been
allocated to the Corresponding REMIC II Regular Interest with a corresponding
reduction in the REMIC Principal Balance of such Corresponding REMIC II Regular
Interest. On and after the Transition Date, each Realized Loss and Additional
Trust Fund Expense, if any, allocated to any Class of Sequential Pay
Certificates shall be deemed to have first been allocated to the Corresponding
REMIC III P&I Regular Interest with a corresponding reduction in the REMIC
Principal Balance of such Corresponding REMIC III P&I Regular Interest. On and
after the Transition Date, each Realized Loss and Additional Trust Fund Expense,
if any, allocated to any REMIC III P&I Regular Interest shall be deemed to have
first been allocated to the Corresponding REMIC II Regular Interest with a
corresponding reduction in the REMIC Principal Balance of such Corresponding
REMIC II Regular Interest.
(c) On each Distribution Date, following the deemed distributions to be
made in respect of the REMIC I Regular Interests pursuant to Section 4.01(i),
the Uncertified Principal Balance of each REMIC I Regular Interest (after taking
account of such deemed distributions) shall be reduced to equal the Stated
Principal Balance of the related Mortgage
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Loan or REO Loan, as the case may be, that will be outstanding immediately
following such Distribution Date. Such reductions shall be deemed to be an
allocation of Realized Losses and Additional Trust Fund Expenses.
SECTION 4.05. Calculations.
The Paying Agent shall, provided it receives the necessary information
from the Master Servicer and the Special Servicer, be responsible for performing
all calculations necessary in connection with the actual and deemed
distributions and allocations to be made pursuant to Section 4.01, Section
5.02(d) and Article IX and the actual and deemed allocations of Realized Losses
and Additional Trust Fund Expenses to be made pursuant to Section 4.04. The
Paying Agent shall calculate the Available Distribution Amount for each
Distribution Date and shall allocate such amount among Certificateholders in
accordance with this Agreement, and the Paying Agent shall have no obligation to
recompute, recalculate or verify any information provided to it by the Special
Servicer or Master Servicer. The calculations by the Paying Agent of such
amounts shall, in the absence of manifest error, be presumptively deemed to be
correct for all purposes hereunder.
SECTION 4.06. Use of Agents.
The Master Servicer or the Trustee may at its own expense utilize agents
or attorneys-in-fact in performing any of its obligations under this Article IV
(except the obligation to make P&I Advances), but no such utilization shall
relieve the Master Servicer or the Trustee from any of such obligations, and the
Master Servicer or the Trustee, as applicable, shall remain responsible for all
acts and omissions of any such agent or attorney-in-fact (other than with
respect to limited powers-of-attorney delivered by the Trustee to the Master
Servicer or Special Servicer pursuant to Section 2.03(b) and 3.01(b), as
applicable, in which case the Trustee shall have no such responsibility). The
Master Servicer or the Trustee shall have all the limitations upon liability and
all the indemnities for the actions and omissions of any such agent or
attorney-in-fact that it has for its own actions hereunder pursuant to Article
VI or Article VIII hereof, as applicable, and any such agent or attorney-in-fact
shall have the benefit of all the limitations upon liability, if any, and all
the indemnities provided to the Master Servicer under Section 6.03 or to the
Trustee under Sections 8.01, 8.02 and 8.05, as applicable.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibit A; 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 Registered Certificates and the Class F Certificates
and Class G Certificates shall initially be held and transferred through the
book-entry facilities of the Depository. The Regular Certificates will be
issuable only in denominations corresponding to initial Certificate Principal
Balances or initial Certificate Notional Amounts, as the case may be, as of the
Closing Date of not less than $5,000 in the case of the Class A-1 and Class A-2
Certificates, $50,000 in the case of the Class B, Class C, Class D, Class E and
Class IO-1 Certificates, and $250,000 in the case of the Class F, Class G, Class
H and Class IO-2 Certificates, and in each such case in integral multiples of $1
in excess thereof. The Residual Certificates shall have no minimum denomination
and shall each be represented by a single definitive certificate.
(b) The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by the Certificate Registrar hereunder by an authorized
signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Certificate
Registrar 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
Authenticating Agent 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.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar (located as of the Closing Date at Norwest
Center, Sixth and Marquette, Minneapolis, Minnesota 55479-0113), shall provide
for the registration of Certificates and of transfers and
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exchanges of Certificates as herein provided. The Trustee is hereby initially
appointed (and hereby agrees to act in accordance with the terms hereof) as
Certificate Registrar for the purpose of registering Certificates and transfers
and exchanges of Certificates as herein provided. The Certificate Registrar may
appoint, by a written instrument delivered to the Depositor, the Trustee, the
Special Servicer and (if the Trustee is not the Certificate Registrar) the
Master Servicer, any other bank or trust company to act as Certificate Registrar
under such conditions as the predecessor Certificate Registrar may prescribe,
provided that the predecessor Certificate Registrar shall not be relieved of any
of its duties or responsibilities hereunder by reason of such appointment. If
the Trustee resigns or is removed in accordance with the terms hereof, the
successor trustee shall immediately succeed to its duties as Certificate
Registrar. The Depositor, the Trustee (if it is no longer the Certificate
Registrar), the Master Servicer and the Special Servicer 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 written
request of any Certificateholder made for purposes of communicating with other
Certificateholders with respect to their rights under this Agreement, the
Certificate Registrar shall promptly furnish such Certificateholder with a list
of the other Certificateholders of record identified in the Certificate Register
at the time of the request.
(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 that does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the transfer thereof by the Depositor, the Underwriters or
their respective Affiliates), then the Certificate Registrar shall refuse to
register such transfer unless it receives (and upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit G-1 hereto,
and a certificate from such Certificateholder's prospective transferee
substantially in the form attached as either Exhibit G-2 hereto or as Exhibit
G-3 hereto; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify any Class of
Non-Registered Certificates under the Securities Act or any other securities law
or to take any action not otherwise required under this Agreement to permit the
transfer of any Non-Registered Certificate without registration or
qualification. Any Holder of a Non-Registered Certificate desiring to effect
such a transfer shall, and upon acquisition of such a Certificate shall be
deemed to have agreed to, indemnify the Trustee, the Certificate Registrar and
the Depositor 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.
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In connection with transfer of the Non-Registered Certificates, the
Depositor shall furnish upon request of a Certificateholder or Certificate Owner
to such Holder or Certificate Owner and any prospective purchaser designated by
such Certificateholder or Certificate Owner the information required to be
delivered under paragraph (d)(4) of Rule 144A of the Securities Act.
Notwithstanding the foregoing, for so long as any Non-Registered
Certificate is a Book-Entry Certificate, (a) each prospective transferor of such
Certificate shall be deemed to have represented to the Trustee, the Depositor
and the transferee of such Certificate the information set forth on Exhibit G-1
upon or prior to such transfer and (b) each prospective transferee of such
Certificate shall be deemed to have represented to the Trustee, the Depositor
and the transferor of such Certificate the information set forth on Exhibit G-2
or Exhibit G-3 upon or prior to such transfer.
(c) No transfer of a Subordinated Certificate or any interest therein
shall be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Keogh plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, that is subject to ERISA or the Code (each, a
"Plan"), or (B) to any Person who is directly or indirectly purchasing such
Subordinated Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute "plan assets" of a Plan); provided that (i) such a transfer may be
made to a Person using funds from an insurance company general account with
respect to any Class of Subordinated Certificates which is eligible for
exemptive relief under Section III of Prohibited Transaction Class Exemption
95-60 ("PTE 95-60"), provided that, in the case of a Definitive Certificate, the
proposed transferee certifies to the Trustee that the conditions of Sections I,
III and IV of PTE 95-60 are satisfied with respect to such transfer, and (ii)
such a transfer may also be made with respect to a Class F, Class G and Class H
(in the case of a Class F or Class G Certificate, if Definitive Certificates are
issue in respect thereof), if the prospective transferee provides the
Certificate Registrar with a certification of facts and an Opinion of Counsel
(upon which the Certificate Registrar may conclusively rely) which establish to
the reasonable satisfaction of the Certificate Registrar that such transfer will
not result in a violation of Section 406 of ERISA or Section 4975 of the Code or
result in the imposition of an excise tax under Section 4975 of the Code. As a
condition to its registration of the transfer of a Subordinated Certificate, the
Certificate Registrar shall have the right to require the prospective transferee
of such Certificate, if it is not a Plan or Person described in clause (B) of
the preceding sentence, to execute a certification affidavit to that effect in
the form attached as Exhibit H hereto. Notwithstanding the foregoing, for so
long as any Class of Certificate constitutes a Class of Book-Entry Certificates,
each prospective transferee of such Certificate or any interest therein shall be
deemed to have represented to the Trustee, the Depositor and the transferor of
such Certificate (i) the information set forth on Exhibit H, (ii) that it is
using funds from an insurance company general account which is eligible for
exemptive relief under Section III of PTE 95-60 and the conditions of Section I,
III and IV of PTE 95-60 are satisfied with respect to such transfer or (iii)
that the purchase, continued holding and transfer of such Certificate or
interest therein will
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not violate Section 406 of ERISA or Section 4975 of the Code or result in the
imposition of an excise tax under Section 4975 of the Code.
(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 Paying Agent under clause (ii)(A) below to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Certificate Registrar under clause (ii)(B) below 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 sale. The
rights of each Person acquiring any Ownership Interest in a Residual Certificate
are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the Master Servicer, the Paying Agent and the Certificate Registrar
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, 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 I-1 (in any case, a
"Transfer Affidavit and Agreement"), from the proposed Transferee, in form
and substance satisfactory to the Certificate Registrar, and upon which
the Certificate Registrar may, in the absence of actual knowledge by a
Responsible Officer of either the Trustee or the Certificate Registrar to
the contrary, conclusively rely, 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 a
Responsible Officer of 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.
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(D) 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 I-2 stating that, among other things, it
has no actual knowledge that such prospective Transferee is not a
Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate, by purchasing an Ownership Interest in such
Certificate, agrees to give the Master Servicer and the Trustee written
notice that it is a "pass-through interest holder" within the meaning of
temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon
acquiring an Ownership Interest in a Residual Certificate, if it is, or is
holding an Ownership Interest in a Residual Certificate on behalf of, a
pass-through interest holder".
(ii) (A) 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 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.
(B) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the restrictions in this Section 5.02(d),
then, to the extent that the retroactive restoration of the rights of the
preceding Holder of such Residual Certificate as described in clause
(ii)(A) above shall be invalid, illegal or unenforceable, the Certificate
Registrar shall have the right, without notice to the Holder or any prior
Holder of such Residual Certificate, to cause the transfer of such
Residual Certificate to a Permitted Transferee on such terms as the
Certificate Registrar may choose. Such purported Transferee shall promptly
endorse and deliver such Residual Certificate in accordance with the
instructions of the Certificate Registrar. Such Permitted Transferee may
be the Certificate Registrar itself or any Affiliate of the Certificate
Registrar. Any proceeds of such sale, net of the commissions (which may
include commissions payable to the Certificate Registrar or its
Affiliates), expenses and taxes due, if any, will be remitted by the
Paying Agent to such purported Transferee. The
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terms and conditions of any sale under this clause (ii)(B) shall be determined
in the sole discretion of the Certificate Registrar, and the Certificate
Registrar shall not be liable to any Person having an Ownership Interest in a
Residual Certificate as a result of its exercise of such discretion.
(iii) The Certificate Registrar shall make available to the Internal
Revenue Service and to those Persons specified by the REMIC Provisions any
information available to it which is necessary to compute any tax imposed (A) as
a result of the Transfer of an Ownership Interest in a Residual Certificate to
any Person who is a Disqualified Organization, 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 and (B) as
a result of any regulated investment company, real estate investment trust,
common trust fund, partnership, trust, estate or organization described in
Section 1381 of the Code that holds an Ownership Interest in a Residual
Certificate having as among its record holders at any time any Person which is a
Disqualified Organization, and the Master Servicer and the Special Servicer
shall furnish to the Certificate Registrar all information in its possession
necessary for the Certificate Registrar to discharge such obligation. The Person
holding such Ownership Interest shall be responsible for the reasonable
compensation of the Certificate Registrar, the Master Servicer and the Special
Servicer for providing such information.
(iv) The provisions of this Section 5.02(d) set forth prior to this clause
(iv) may be modified, added to or eliminated, provided that there shall have
been delivered to the Certificate Registrar and the Master Servicer the
following:
(A) written confirmation from each Rating Agency to the effect that
the modification of, addition to or elimination of such provisions will
not cause such Rating Agency to qualify, downgrade or withdraw its
then-current rating of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the
Certificate Registrar and the Master Servicer, obtained at the expense of
the party seeking such modification of, addition to or elimination of such
provisions (but in no event at the expense of the Trust or the Trust
Fund), to the effect that doing so will not cause either of REMIC I, REMIC
II, REMIC III or REMIC IV (if any) to (x) cease to qualify as a REMIC or
(y) be subject to an entity-level tax caused by the Transfer of any
Residual Certificate to a Person which is not a Permitted Transferee, or
cause a Person other than the prospective Transferee to be subject to a
REMIC-related tax caused by the Transfer of a Residual Certificate to a
Person that is not a Permitted Transferee.
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(e) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for
other Certificates of authorized denominations of the same Class of a like
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the
Certificate Registrar shall execute and the Authenticating Agent shall
authenticate and deliver the Certificates which the Certificateholder making the
exchange is entitled to receive.
(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 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.
(i) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
(j) Upon request, the Certificate Registrar shall provide to the Master
Servicer, the Special Servicer and the Depositor notice of each transfer of a
Certificate and shall provide to each such Person with an updated copy of the
Certificate Register.
SECTION 5.03. Book-Entry Certificates.
(a) Each Class of Registered Certificates and the Class F and Class G
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 Section
5.03(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 Section
5.03(c) below, shall not be entitled to definitive, fully registered
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
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Depository Participant shall only transfer the Ownership Interests in the
Book-Entry Certificates of Certificate Owners it represents or of brokerage
firms for which it acts as agent in accordance with the Depository's normal
procedures.
(b) The Trustee, the Master Servicer, the Special Servicer, the Depositor
and the Certificate Registrar may for all purposes, including the making of
payments due on the Book-Entry Certificates, deal with the Depository as the
authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(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 a 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 a Class of 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 the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, at the Depositor's expense, and the Authenticating
Agent shall authenticate and deliver, the Definitive Certificates in respect of
such Class to the Certificate Owners identified in such instructions. The
Depositor shall provide the Certificate Registrar with an adequate inventory of
Definitive Certificates. None of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates for purposes of evidencing ownership of any Class of Registered
Certificates, the registered holders of such Definitive Certificates shall be
recognized as Certificateholders hereunder and, accordingly, shall be entitled
directly to receive payments on, to exercise Voting Rights with respect to, and
to transfer and exchange such Definitive Certificates.
(d) Notwithstanding any other provisions contained herein, neither the
Trustee nor the Certificate Registrar shall have any responsibility whatsoever
to monitor or restrict the transfer of ownership interests in any Certificate
(including but not limited to any Non-Registered Certificate or any Subordinated
Certificate) which interests are transferable through the book-entry facilities
of the Depository.
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SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be required by them to save each of them harmless, then, in the absence of
actual notice to the Trustee or the Certificate Registrar that such Certificate
has been acquired by a bona fide purchaser, the Certificate Registrar shall
execute and the Authenticating Agent 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
Master Servicer, the Special Servicer, the Trustee, the Certificate Registrar
and any agent 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 Master Servicer, the Special Servicer, the Trustee,
the Certificate Registrar or any agent of any of them shall be affected by
notice to the contrary.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER
AND THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special
Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
SECTION 6.02. Merger, Consolidation or Conversion of Depositor or Master
Servicer or Special Servicer.
Subject to the following paragraph, the Depositor and the Special Servicer
shall each keep in full effect its existence, rights and franchises as a
corporation under the laws of the jurisdiction of its incorporation or
organization, and each will obtain and preserve its qualification to do business
as a foreign corporation in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this Agreement,
the Certificates or any of the Mortgage Loans and to perform its respective
duties under this Agreement, and the Master Servicer shall keep in full effect
its existence and rights as a national banking association under the laws of the
United States.
The Depositor, the Master Servicer or the Special Servicer may be merged
or consolidated with or into any Person, or transfer all or substantially all of
its assets (which may be limited to all or substantially all of its assets
related to commercial mortgage loan servicing) to any Person, in which case any
Person resulting from any merger or consolidation to which the Depositor, the
Master Servicer or the Special Servicer shall be a party, or any Person
succeeding to the business (which may be limited to the commercial loan
servicing business) of the Depositor, the Master Servicer or the Special
Servicer, shall be the successor of the Depositor, the Master Servicer or the
Special Servicer, 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
or the Special Servicer unless (i) as evidenced in writing by the Rating
Agencies, such succession will not result in qualification, downgrading or
withdrawal of the ratings then assigned by the Rating Agencies to any Class of
Certificates; (ii) such successor or surviving Person makes the applicable
representations and warranties set forth in Section 3.23; (iii) in the case of a
successor or surviving Person to the Master Servicer, such successor or
surviving Person shall have a net worth (or, in the case of the initial Master
Servicer, such successor or surviving Person and its immediate parent shall have
a consolidated net worth) of not less than $15,000,000; and (iv) in the case of
a successor or surviving Person to the Master Servicer, it is determined by the
Trustee in its reasonable judgment to have, after the merger, consolidation or
transfer, as the case may be, financial and servicing capabilities comparable to
that of the predecessor Master Servicer.
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SECTION 6.03. Limitation on Liability of Depositor, Master Servicer and
Special Servicer.
None of the Depositor, the Master Servicer or the Special Servicer shall
be under any liability to the Trust Fund, the Trustee or the Certificateholders
for any action taken, or not taken, in good faith pursuant to this Agreement, or
for errors in judgment; provided, however, that this provision shall not protect
the Depositor, the Master Servicer or the Special Servicer against any liability
to the Trust Fund, the Trustee or the Certificateholders for the breach of a
representation, warranty or covenant made herein by such party, or against any
expense or liability specifically required to be borne by such party without
right of reimbursement pursuant to the terms hereof, or against any liability
which would otherwise be imposed by reason of misfeasance, bad faith or
negligence in the performance of obligations or duties hereunder. The Depositor,
the Master Servicer, the Special Servicer and any director, officer, employee or
agent of the Depositor, the Master Servicer or the Special Servicer 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 and any director, officer,
employee or agent of the Depositor, the Master Servicer or the Special Servicer
shall be indemnified and held harmless by the Trust Fund against any loss,
liability or reasonable expense incurred in connection with this Agreement or
the Certificates, other than any loss, liability or expense: (i) specifically
required to be borne by such party without right of reimbursement pursuant to
the terms hereof (including without limitation, those expenses set forth in
Section 3.11(b) and the last sentence of the definition of Servicing Advances);
(ii) incurred in connection with any breach of a representation, warranty or
covenant made herein; or (iii) incurred by reason of willful misfeasance, bad
faith or negligence in the performance of obligations or duties hereunder. None
of the Depositor, the Master Servicer or the Special Servicer 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, either (i) it is
specifically required hereunder to bear the costs of such legal action or (ii)
such action, in its opinion does not involve it in any ultimate expense or
liability for which it would not be reimbursed hereunder; provided, however,
that the Depositor, the Master Servicer or the Special Servicer may in its
discretion undertake any such legal 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 Fund, and the Depositor, the Master Servicer and the Special Servicer
shall be entitled to be reimbursed therefor from the Certificate Account as
provided in Section 3.05. In no event shall the Master Servicer or the Special
Servicer be liable or responsible for any action taken or omitted to be taken by
the other of them or by the Depositor, the Trustee or any Certificateholder,
subject to the provisions of the last paragraph of Section 8.05.
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SECTION 6.04. Resignation of Master Servicer and the Special Servicer.
The Master Servicer and, subject to Section 6.09, the Special Servicer may
resign from the obligations and duties hereby imposed on it, upon a
determination that its 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
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the Master
Servicer's or Special Servicer's resignation to be effective immediately, and
the Opinion of Counsel delivered pursuant to the prior sentence so states, no
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
in accordance with Section 7.02 hereof. The Master Servicer and the Special
Servicer shall have the right to resign at any other time provided that (i) a
willing successor thereto has been found, (ii) each of the Rating Agencies
confirms in writing that the successor's appointment will not result in a
withdrawal, qualification or downgrade of any rating or ratings assigned to any
Class of Certificates, (iii) the resigning party pays all costs and expenses in
connection with such transfer, and (iv) the successor accepts appointment prior
to the effectiveness of such resignation. Neither the Master Servicer nor the
Special Servicer shall be permitted to resign except as contemplated above in
this Section 6.04.
Consistent with the foregoing, neither the Master Servicer nor the Special
Servicer shall, except as expressly provided herein, assign or transfer any of
its rights, benefits or privileges hereunder to any other Person, or, except as
provided in Sections 3.22 and 4.06, 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 or the Special Servicer are
transferred to a successor thereto, the Master Servicing Fee or the Special
Servicing Fee, as the case may be, that accrues pursuant hereto from and after
the date of such transfer shall be payable to such successor.
SECTION 6.05. Rights of Depositor and Trustee in Respect of Master
Servicer and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor, the Underwriters and the Trustee, upon reasonable notice, during
normal business hours access to all records maintained thereby in respect of its
rights and obligations hereunder and access to officers thereof responsible for
such obligations. Upon reasonable request, the Master Servicer and the Special
Servicer shall each furnish the Depositor, the Underwriters and the Trustee with
its most recent publicly available financial statements and such other
information as it possesses, and which it is not prohibited by applicable law or
contract from disclosing, regarding its business, affairs, property and
condition, financial or otherwise, except to the
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extent such information constitutes proprietary information or is subject to a
privilege under applicable law. The Depositor may, but is not obligated to,
enforce the obligations of the Master Servicer and the Special Servicer
hereunder and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of the Master Servicer or Special Servicer
hereunder or exercise the rights of the Master Servicer and the Special Servicer
hereunder; provided, however, that neither the Master Servicer nor the Special
Servicer shall be relieved of any of its obligations hereunder by virtue of such
performance by the Depositor or its designee and, further provided, that the
Depositor may not exercise any right pursuant to Section 7.01 to terminate the
Master Servicer or the Special Servicer as a party to this Agreement. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Master Servicer or the Special Servicer and is not
obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
SECTION 6.06. Depositor, Master Servicer and Special Servicer to Cooperate
with Trustee.
The Depositor, the Master Servicer and the Special Servicer shall each
furnish such reports, certifications and information as are reasonably requested
by the Trustee in order to enable it to perform its duties hereunder.
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate with
Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each furnish
such reports, certifications and information as are reasonably requested by the
Master Servicer in order to enable it to perform its duties hereunder.
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with
Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each furnish such
reports, certifications and information as are reasonably requested by the
Special Servicer in order to enable it to perform its duties hereunder.
SECTION 6.09. Designation of Special Servicer by the Controlling Class.
The Holder or Holders of the Certificates evidencing a majority of the
Voting Rights allocated to the Controlling Class may at any time and from time
to time designate a Person meeting the requirements set forth in Section 6.02
(including, without limitation, rating agency confirmation) to serve as Special
Servicer hereunder and to replace any existing Special Servicer or any Special
Servicer that has resigned or otherwise ceased to serve as Special Servicer.
Such Holder or Holders may also select a representative (the "Controlling Class
Representative") from whom the Special Servicer will seek advice and approval
and take direction under certain circumstances, as described herein. Such Holder
or Holders shall so designate a Person to serve as replacement Special Servicer
by the delivery to the Trustee, the
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Master Servicer and the existing Special Servicer of a written notice stating
such designation. The Trustee shall, promptly after receiving any such notice,
deliver to the Rating Agencies an executed Notice and Acknowledgment in the form
attached hereto as Exhibit J-1. If such Holders have not replaced the Special
Servicer within 30 days of such Special Servicer's resignation or the date such
Special Servicer has ceased to serve in such capacity, the Trustee shall
designate a successor Special Servicer meeting the requirements set forth in
Section 6.02. Any designated Person shall become the Special Servicer, subject
to satisfaction of the other conditions set forth below, on the date that the
Trustee shall have received written confirmation from all of the Rating Agencies
that the appointment of such Person will not result in the qualification,
downgrading or withdrawal of the rating or ratings assigned to one or more
Classes of the Certificates. The appointment of such designated Person as
Special Servicer shall also be subject to receipt by the Trustee of (1) an
Acknowledgment of Proposed Special Servicer in the form attached hereto as
Exhibit J-2, executed by the designated Person, and (2) an Opinion of Counsel
(at the expense of the Person designated to become the Special Servicer) to the
effect that the designation of such Person to serve as Special Servicer is in
compliance with this Section 6.09 and all other applicable provisions of this
Agreement, that upon the execution and delivery of the Acknowledgment of
Proposed Special Servicer 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. Any existing Special Servicer
shall be deemed to have resigned simultaneously with such designated Person's
becoming the Special Servicer hereunder; provided, however, that the resigning
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, and it shall
continue to be entitled to the benefits of Section 6.03 notwithstanding any such
resignation. Such resigning Special Servicer shall cooperate with the Trustee
and the replacement Special Servicer in effecting the termination of the
resigning Special Servicer's 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 Special Servicer to the Certificate
Account or the REO Account or delivered to the Master Servicer or that are
thereafter received with respect to Specially Serviced Mortgage Loans and REO
Properties.
SECTION 6.10. Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer or an Affiliate of the Master Servicer or the Special
Servicer or an Affiliate of the Special Servicer may become the Holder of (or,
in the case of a Book-Entry Certificate, Certificate Owner with respect to) any
Certificate with (except as set forth in the definition of "Certificateholder")
the same rights it would have if it were not the Master Servicer or the Special
Servicer or an Affiliate thereof. If, at any time during which the Master
Servicer or the Special Servicer or an Affiliate of the Master Servicer or the
Special Servicer is the Holder of (or, in the case of a Book-Entry Certificate,
Certificate Owner with respect to) any Certificate, the Master Servicer or the
Special Servicer proposes to take action (including for this purpose, omitting
to take action) that (i) is not expressly prohibited by the
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terms hereof and would not, in the Master Servicer's or the Special Servicer's
good faith judgment, violate the Servicing Standard, and (ii) if taken, might
nonetheless, in the Master Servicer's or the Special Servicer's reasonable, good
faith judgment, be considered by other Persons to violate the Servicing
Standard, then the Master Servicer or the Special Servicer may (but need not)
seek the approval of the Certificateholders to such action by delivering to the
Trustee a written notice that (a) states that it is delivered pursuant to this
Section 6.10, (b) identifies the Percentage Interest in each Class of
Certificates beneficially owned by the Master Servicer or the Special Servicer
or an Affiliate of the Master Servicer or the Special Servicer, and (c)
describes in reasonable detail the action that the Master Servicer or the
Special Servicer proposes to take. The Trustee, upon receipt of such notice,
shall forward it to the Certificateholders (other than the Master Servicer and
its Affiliates or the Special Servicer and its Affiliates, as appropriate),
together with such instructions for response as the Trustee shall reasonably
determine. If at any time Certificateholders holding greater than 50% of the
Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Master Servicer or its Affiliates or the
Special Servicer or its Affiliates) shall have failed to object in writing to
the proposal described in the written notice, and if the Master Servicer or the
Special Servicer shall act as proposed in the written notice within thirty (30)
days, such action shall be deemed to comply with, but not modify, the Servicing
Standard. The Trustee shall be entitled to reimbursement from the Master
Servicer or the Special Servicer, as applicable, for the reasonable expenses of
the Trustee incurred pursuant to this paragraph. It is not the intent of the
foregoing provision that the Master Servicer or the Special Servicer be
permitted to invoke the procedure set forth herein with respect to routine
servicing matters arising hereunder, but rather in the case of unusual
circumstances.
SECTION 6.11. The Controlling Class Representative.
The Controlling Class Representative will be entitled to advise the
Special Servicer with respect to the following actions of the Special Servicer,
and notwithstanding anything herein to the contrary except as set forth in, and
in any event subject to, the second paragraph of this Section 6.11, the Special
Servicer will not be permitted to take any of the following actions as to which
the Controlling Class Representative has objected in writing within ten Business
Days of being notified thereof (provided that if such written objection has not
been received by the Special Servicer within such ten Business Day period, then
the Controlling Class Representative's approval will be deemed to have been
given):
(i) any foreclosure upon or comparable conversion (which may include
acquisitions of an REO Property) of the ownership of properties securing
such of the Specially Serviced Mortgage Loans as come into and continue in
default;
(ii) any modification of a monetary term of a Mortgage Loan other
than a modification consisting of the extension of the maturity date of a
Mortgage Loan for one year or less;
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(iii) any proposed sale of a defaulted Mortgage Loan or REO Property
(other than in connection with the termination of the Trust Fund);
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any acceptance of substitute or additional collateral for a
Mortgage Loan;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause;
and
(vii) any acceptance of an assumption agreement releasing a borrower
from liability under a Mortgage Loan.
In addition, the Controlling Class Representative may direct the Special
Servicer to take, or to refrain from taking, such other actions as the
Controlling Class Representative may deem advisable or as to which provision is
otherwise made herein; provided that notwithstanding anything herein to the
contrary no such direction, and no objection contemplated by the preceding
paragraph, may require or cause the Special Servicer to violate any provision of
this Agreement or the REMIC Provisions, including without limitation the Special
Servicer's obligation to act in accordance with the Servicing Standard, or
expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee
to liability, or materially expand the scope of the Special Servicer's
responsibilities hereunder or cause the Special Servicer to act, or fail to act,
in a manner which in the reasonable judgment of the Special Servicer is not in
the best interests of the Certificateholders.
The Controlling Class Representative will have no liability to the
Certificateholders for any action taken, or for refraining from the taking of
any action, in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that the Controlling Class Representative will not be
protected against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of reckless disregard of obligations or duties. By its acceptance of a
Certificate, each Certificateholder confirms its understanding that the
Controlling Class Representative may take actions that favor the interests of
one or more Classes of the Certificates over other Classes of the Certificates,
and that the Controlling Class Representative may have special relationships and
interests that conflict with those of Holders of some Classes of the
Certificates; and, absent willful misfeasance, bad faith or negligence on the
part of the Controlling Class Representative, agrees to take no action against
the Controlling Class Representative or any of its officers, directors,
employees, principals or agents as a result of such a special relationship or
conflict.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into the
Certificate Account, or to deposit into, or remit to the Paying Agent for
deposit into, the Distribution Account, any amount (other than a P&I
Advance) required to be so deposited or remitted by it under this
Agreement; provided, however, that if such failure to deposit or remit
occurs only once in any consecutive twelve-month period, which failure is
corrected by 10:00 a.m., New York City time on the related Distribution
Date, then with respect to such one failure only, a default shall be
deemed not to have occurred; or
(ii) any failure by the Special Servicer to deposit into the REO
Account or to deposit into, or to remit to the Master Servicer for deposit
into, the Certificate Account, any amount required to be so deposited or
remitted under this Agreement; or
(iii) any failure by the Master Servicer or the Special Servicer to
timely make any Servicing Advance required to be made by it hereunder,
which Servicing Advance remains unmade for a period of three Business Days
following the date on which notice shall have been given to the Master
Servicer or the Special Servicer, as the case may be, by the Trustee as
provided in Section 3.03(c); or
(iv) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of the Master Servicer or the
Special Servicer, as the case may be, contained in this Agreement which
continues unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to the Master Servicer and 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, provided, however, that with respect to any such failure
which is not curable within such 30-day period, the Master Servicer or the
Special Servicer, as the case may be, shall have an additional cure period
of thirty (30) days to effect such cure so long as the Master Servicer or
the Special Servicer, as the case may be, has commenced to cure such
failure within the initial 30-day period and has provided the Trustee with
an Officer's
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Certificate certifying that it has diligently pursued, and is continuing
to pursue, a full cure; or
(v) any breach on the part of the Master Servicer or the Special
Servicer of any representation or warranty contained in this Agreement
that 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 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, provided, however, that with respect to any
failure which is not curable within such 30-day period, the Master
Servicer or the Special Servicer, as the case may be, shall have an
additional cure period of thirty (30) days so long as the Master Servicer
or the Special Servicer, as the case may be, has commenced to cure within
the initial 30-day period and provided the Trustee with an Officer's
Certificate certifying that it has diligently pursued, and is continuing
to pursue, a full cure; or
(vi) 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,
marshaling 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 or the Special Servicer and such decree or order shall
have remained in force undischarged or unstayed for a period of 60 days;
or
(vii) the Master Servicer or the Special Servicer shall consent to
the appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
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
(viii) the Master Servicer or the Special Servicer 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
(ix) the consolidated net worth of the Master Servicer and of its
direct or indirect parent, determined in accordance with generally
accepted accounting principles, shall decline to less than $15,000,000; or
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(x) the Special Servicer or the Master Servicer is no longer
"approved" by any one of the Rating Agencies to act in such capacity; or
(xi) the Master Servicer shall fail to remit to the Paying Agent for
deposit into the Distribution Account, on any P&I Advance Date, the full
amount of P&I Advances required to be made on such date, which failure
continues unremedied until 10:00 a.m. New York City time on the next
Business Day succeeding such P&I Advance Date.
When a single entity acts as the Master Servicer and the Special Servicer, an
Event of Default in one capacity shall constitute an Event of Default in the
other capacity.
(b) If any Event of Default described in clauses (i) - (x) of subsection
(a) above shall occur with respect to the Master Servicer or the Special
Servicer (in either case, for purposes of this Section 7.01(b), the "Defaulting
Party") and shall be continuing, then, and in each and every such case, so long
as such Event of Default shall not have been remedied, the Trustee may, and at
the written direction of the Holders of Certificates entitled to at least 25% of
the Voting Rights, the Trustee shall, by notice in writing to the Defaulting
Party (with a copy of such notice to each other party hereto and the Rating
Agencies) terminate all of the rights and obligations (but not the liabilities
for actions and omissions occurring prior thereto) of the Defaulting Party under
this Agreement and in and to the Trust Fund, other than its rights as a
Certificateholder hereunder. If an Event of Default described in clause (xi) of
subsection (a) above shall occur with respect to the Master Servicer or, if
applicable, the Special Servicer (in either case, under such circumstances, for
purposes of this Section 7.01(b), the "Defaulting Party"), the Trustee shall, by
notice in writing (to be sent immediately by facsimile transmission) to the
Defaulting Party (with a copy of such notice to each other party hereto and the
Rating Agencies), terminate all of the rights and obligations (but not the
liabilities for actions and omissions occurring prior thereto) of the Defaulting
Party under this Agreement and in and to the Trust Fund, other than its rights,
if any, as a Certificateholder hereunder. From and after the receipt by the
Defaulting Party of such written notice of termination, 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, including those in electronic form, 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
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hereunder, including, without limitation, (i) the immediate transfer to the
Trustee or a successor Master or Special Servicer for administration by it of
all cash amounts that shall at the time be or should have been credited by the
Master Servicer to the Certificate Account, the Distribution Account, a
Servicing Account or a Reserve Account (if the Master Servicer is the Defaulting
Party) or that are thereafter received by or on behalf of it with respect to any
Mortgage Loan or (ii) the transfer within two Business Days to the Trustee or a
successor Special Servicer for administration by it of all cash amounts that
shall at the time be or should have been credited by the Special Servicer to the
REO Account, the Certificate Account, a Servicing Account or a Reserve Account
or delivered to the Master Servicer (if the Special Servicer is the Defaulting
Party) or that are thereafter received by or on behalf of it with respect to any
Mortgage Loan or REO Property (provided, however, that the Master Servicer and
the Special Servicer each shall, if terminated pursuant to this Section 7.01(b),
continue to be entitled to receive all amounts accrued or owing to it under this
Agreement on or prior to the date of such termination, whether in respect of
Advances or otherwise, and it shall continue to be entitled to the benefits of
Section 6.03 notwithstanding any such termination). Any cost or expenses in
connection with any actions to be taken by the Master Servicer, the Special
Servicer or the Trustee pursuant to this paragraph shall be borne by the
Defaulting Party and if not paid by the Defaulting Party within 90 days after
the presentation of reasonable documentation of such costs and expenses, such
expense shall be reimbursed by the Trust Fund; provided, however, that the
Defaulting Party shall not thereby be relieved of its liability for such
expenses. If and to the extent that the Defaulting Party has not reimbursed such
costs and expenses, the Trustee shall have an affirmative obligation to take all
reasonable actions to collect such expenses on behalf of and at the expense of
the Trust Fund. For purposes of this Section 7.01 and of Section 7.03(b), the
Trustee shall not be deemed to have knowledge of an event which constitutes, or
which with the passage of time or notice, or both, would constitute an Event of
Default described in clauses (i)-(viii) of subsection (a) above unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless notice
of any event which is in fact such an Event of Default is received by the
Trustee and such notice references the Certificates, the Trust Fund or this
Agreement.
The Master Servicer further agrees that if it is terminated pursuant to
this Section 7.01(b) or if it resigns under the circumstances permitted under
Section 6.04, or if for any other reason it is no longer the Master Servicer, it
shall promptly (and in any event no later than five Business Days after its
receipt of the notice of termination) (i) assign its rights under the
Semi-Annual Loan Swap Agreement to the Trustee, as successor Master Servicer, or
(ii) at the Depositor's expense (to the extent such expense exceeds 0.135% per
annum based on the aggregate principal balance of the Semi-Annual Mortgage
Loans), cause a substitute counterparty meeting the requirements of Section
3.23(f) to enter into a swap agreement with the Trustee, as successor Master
Servicer, on terms substantially equivalent to those set forth in the
Semi-Annual Loan Swap Agreement. The Master Servicer hereby pledges its rights
under the Semi-Annual Loan Swap Agreement to the Trustee, as successor Master
Servicer, to secure its promise to make the assignment described in the
immediately preceding sentence. In no event will any expenses related to or
amounts due under the Semi-Annual Loan Swap Agreement be an obligation of or
reimbursable from the Trust Fund.
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(c) In the event the Master Servicer is terminated solely due to an Event
of Default under Section 7.01(a)(x) and the Trustee succeeds to the Master
Servicer pursuant to Section 7.01(b), if the Master Servicer delivers to the
Trustee proposed bid materials within five Business Days, the Trustee shall,
within the next three Business Days, solicit good faith bids for the rights to
service the Mortgage Loans under this Agreement from at least three Persons
qualified hereunder in accordance with Sections 6.02 and 7.02 to act as
successor Master Servicer (or if three qualified Persons can not be located,
from as many Persons as qualified). The bid proposal shall require any
Successful Bidder, as a condition of such bid, to enter into this Agreement as
successor Master Servicer, and shall agree to be bound by the terms hereof
within 30 days after the termination of Master Servicer. The Trustee shall
solicit bids (i) on the basis of such successor Master Servicer retaining all
Sub-Servicers to continue the primary servicing of the Mortgage Loans pursuant
to the terms of the respective Sub-Servicing Agreements and entering into a
Sub-Servicing Agreement with the terminated Master Servicer to service each of
the Mortgage Loans not subject to a Sub-Servicing Agreement at a servicing fee
rate of 0.025% per annum per Mortgage Loan serviced (each a "Servicing Retained
Bid") and (ii) on the basis of terminating each Sub-Servicing Agreement and
Sub-Servicer and having no obligation to enter into a Sub-Servicing Agreement
with the terminated Master Servicer (each a "Servicing Released Bid"). The
Trustee shall select the qualified bidder of a Servicing Retained Bid or if none
a Servicing Released Bid, with the highest cash bid (the "Successful Bidder") to
act as successor Master Servicer hereunder. The Trustee shall direct the
Successful Bidder to enter into this Agreement as successor Master Servicer
pursuant to the terms hereof, no later than 30 days after the termination of the
Master Servicer.
Upon the assignment and acceptance of the master servicing rights
hereunder to and by the Successful Bidder, including the transfer of the related
Mortgage Files, the Trustee shall remit or cause to be remitted (i), if the
successful bid was a Servicing Retained Bid, to the terminated Master Servicer
the amount of such cash bid received from the Successful Bidder (net of expenses
in connection with obtaining such bid and out of pocket expenses incurred in
connection with transferring the servicing of the Mortgage Loans) and (ii) if
the successful bid was a Servicing Released Bid, to the Master Servicer and each
Sub-Servicer its respective Bid Allocation.
If the Successful Bidder has not entered into this Agreement as successor
Master Servicer within 30 days after the Trustee was appointed as successor
Master Servicer or no Successful Bidder was identified within such 30 day
period, the Trustee shall have no further obligations under this Section 7.01(c)
and may select a successor Master Servicer of its choice and pursuant to the
terms hereof.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer resigns
pursuant to Section 6.04 or receives a notice of termination pursuant to Section
7.01, the Trustee shall, unless a successor is appointed pursuant to Section
6.04, be the successor in all respects to the Master Servicer or the Special
Servicer, as the case may be, in its capacity as such under this Agreement and
the transactions set forth or provided for herein and shall have
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all (and the former Master Servicer or the Special Servicer, as the case may be,
shall cease to have any) of the responsibilities, duties and liabilities (except
as provided in the next sentence) of the Master Servicer or the Special
Servicer, as the case may be, arising thereafter, including, without limitation,
if the Master Servicer is the resigning or terminated party, the Master
Servicer's obligation to make P&I Advances, including, without limitation, in
connection with any termination of the Master Servicer for an Event of Default
described in clause 7.01(a)(xi), the unmade P&I Advances that gave rise to such
Event of Default; provided, that if the Master Servicer is the resigning or
terminated party, and if after the Closing Date the Trustee is prohibited by law
or regulation from obligating itself to make P&I Advances (as evidenced by an
Opinion of Counsel delivered to the Depositor and the Rating Agencies) the
Trustee shall not be obligated to make such P&I Advances and provided, further,
that any failure to perform such duties or responsibilities caused by the Master
Servicer's or the Special Servicer's, as the case may be, failure to provide
information or monies required by Section 7.01 shall not be considered a default
by the Trustee hereunder. Notwithstanding anything contrary in this Agreement,
the Trustee shall in no event be held responsible or liable with respect to any
of the representations and warranties of the resigning or terminated party
(other than the Trustee) or for any losses incurred by such resigning or
terminated party pursuant to Section 3.06 hereunder nor shall the Trustee be
required to purchase any Mortgage Loan hereunder. As compensation therefor, the
Trustee shall be entitled to all fees and other compensation which the resigning
or terminated party would have been entitled to if the resigning or terminated
party had continued to act hereunder. Notwithstanding the above and subject to
its obligations under Section 3.22(d) and 7.01(c), the Trustee may, if it shall
be unwilling in its sole discretion to so act as either Master Servicer or
Special Servicer, as the case may be, or shall, if it is unable to so act as
either Master Servicer or Special Servicer, as the case may be, if the Trustee
is not approved as a Master Servicer or a Special Servicer, as the case may be,
by any of the Rating Agencies or if the Holders of Certificates entitled to at
least 51% of the Voting Rights so request in writing to the Trustee, promptly
appoint, subject to the approval of each of the Rating Agencies (as evidenced by
written confirmation therefrom to the effect
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that the appointment of such institution would not cause the qualification,
downgrading or withdrawal of the then current rating on any Class of
Certificates), as the successor to the Master Servicer hereunder in the
assumption of all or any part of the responsibilities, duties or liabilities of
the Master Servicer hereunder (including, without limitation, the obligation to
make P&I Advances), which appointment will become effective immediately. In
connection with any such appointment and assumption described herein, the
Trustee may make such arrangements for the compensation of such successor out of
payments on the Mortgage Loans 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. Such successor and the other parties
hereto shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special Servicer
pursuant to Section 6.04, any termination of the Master Servicer or the Special
Servicer pursuant to Section 7.01, any appointment of a successor to the Master
Servicer or the Special Servicer pursuant to Section 7.02 or the effectiveness
of any designation of a new Special Servicer pursuant to Section 6.09, 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 a Responsible Officer of
the Trustee has notice of the occurrence of such an event, the Trustee shall
transmit by mail to the Depositor and all Certificateholders and the Rating
Agencies notice of such occurrence, unless such default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders representing at least 66-2/3% of the Voting Rights allocated
to the Classes of Certificates affected by any Event of Default hereunder may
waive such Event of Default; provided, however, that an Event of Default under
clauses (i), (ii) , (ix) or (x) of Section 7.01(a) may be waived only by all of
the Certificateholders of the affected Classes. Upon any such waiver of an Event
of Default, such Event of Default shall cease to exist and shall be deemed to
have been remedied for every purpose hereunder. No such waiver shall extend to
any subsequent or other Event of Default or impair any right consequent thereon
except to the extent expressly so waived. Notwithstanding any other provisions
of this Agreement, for purposes of waiving any Event of Default pursuant to this
Section 7.04, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to Voting Rights with respect to
the matters described above.
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
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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 with respect to an Event of
Default resulting from a breach of the covenant in Section 3.22(d), for which
the sole remedy shall be termination of the Master Servicer or 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. Under no circumstances shall the
rights provided to the Trustee under this Section 7.05 be construed as a duty or
obligation of the Trustee.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement to the
extent specifically set forth herein. If any such instrument is found not to
conform to the requirements of this Agreement in a material manner, the Trustee
shall take such action as it deems appropriate to have the instrument corrected.
The Trustee shall not be responsible for the accuracy or content of any
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished by the Depositor or the Master Servicer or the Special
Servicer, 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 misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
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(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 if it was required to do so;
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at
least 25% of the Voting Rights relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; and
(iv) The protections, immunities and indemnities afforded to the
Trustee hereunder shall also be available to it in its capacity as Paying
Agent, Authenticating Agent, Certificate Registrar, REMIC Administrator
and Custodian.
SECTION 8.02. Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01 and Article X.
(i) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it hereunder
in good faith and in accordance therewith;
(iii) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any investigation of
matters arising hereunder or, except as provided in Section 10.01 or 10.02, 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; provided, however, that nothing
contained herein shall, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default which has not been cured, to exercise such of
the rights and powers vested in it by this
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Agreement, and to use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs;
(iv) the Trustee shall not be personally liable for any action reasonably
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(v) prior to the occurrence of an Event of Default hereunder and after the
curing of all Events of Default which may have occurred, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates entitled to at least
25% of the Voting Rights; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such action;
(vi) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys; provided, however, that the Trustee shall remain responsible for all
acts and omissions of such agents or attorneys within the scope of their
employment to the same extent as it is responsible for its own actions and
omissions hereunder;
(vii) the Trustee shall not be responsible for any act or omission of the
Master Servicer or the Special Servicer (unless the Trustee is acting as Master
Servicer or the Special Servicer) or the Depositor; and
(viii) Neither the Trustee nor the Certificate Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with any
restriction on transfer imposed under Article V under this Agreement or under
applicable law with respect to any transfer of any Certificate or any interest
therein, other than to require delivery of the certification(s) and/or Opinions
of Counsel described in said Article applicable with respect to changes in
registration of record ownership of Certificates in the Certificate Register and
to examine the same to determine substantial compliance with the express
requirements of this Agreement. The Trustee and Certificate Registrar shall have
no liability for transfers, including transfers made through the book-entry
facilities of the Depository or between or among Depository Participants or
beneficial owners of the Certificates, made in violation of applicable
restrictions except for its failure to perform its express duties in connection
with changes in registration of record ownership in the Certificate Register.
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than the
statements attributed to the Trustee in Article II and Section 8.16 and the
signature of the Certificate
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Registrar and the Authenticating Agent set forth on each outstanding
Certificate, shall be taken as the statements of the Depositor or the Master
Servicer or the Special Servicer, as the case may be, and the Trustee assumes no
responsibility for their correctness. Except as set forth in Section 8.16, the
Trustee makes no representations as to the validity or sufficiency of this
Agreement or of any Certificate (other than as to the signature of the Trustee
set forth thereon) or of any Mortgage Loan or related document. The Trustee
shall not be accountable for the use or application by the Depositor of any of
the Certificates issued to it or of the proceeds of such Certificates, or for
the use or application of any funds paid to the Depositor in respect of the
assignment of the Mortgage Loans to the Trust Fund, or any funds deposited in or
withdrawn from the Certificate Account or any other account by or on behalf of
the Depositor, the Master Servicer or the Special Servicer. 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 or the Special Servicer, and accepted by the
Trustee in good faith, pursuant to this Agreement.
SECTION 8.04. Trustee May Own Certificates.
The Trustee or any agent of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Certificates with the same rights
(except as otherwise provided in the definition of "Certificateholder") it would
have if it were not the Trustee or such agent.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from the general
funds on deposit in the Distribution Account, prior to any distributions to be
made therefrom on such date, and pay to itself all earned but unpaid Trustee
Fees, as compensation for all services rendered by the Trustee in the execution
of the trusts hereby created and in the exercise and performance of any of the
powers and duties of the Trustee hereunder. The Trustee Fee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) shall constitute the Trustee's sole compensation for such
services to be rendered by it.
(b) The Trustee and any director, officer, employee, affiliate, agent or
"control" person within the meaning of the Securities Act of 1933 of the Trustee
shall be entitled to be indemnified for and held harmless by the Trust Fund
against any loss, liability or reasonable "out-of-pocket" 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 this Agreement, the Mortgage Loans or the
Certificates or any act of the Master Servicer or the Special Servicer taken on
behalf of the Trustee as provided for herein ("Trustee Liability"); provided,
that neither the Trustee nor any of the other above specified Persons shall be
entitled to indemnification pursuant to this Section 8.05(b) for (1) any
liability specifically required to be borne thereby pursuant to the terms
hereof, or (2) 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,
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or by reason of its reckless disregard of such obligations and 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) and of Section 8.05(c) shall
survive any resignation or removal of the Trustee and appointment of a successor
trustee.
(c) If the Trustee Liability arises from the issuance or sale of the
Certificates and the indemnification provided for in Section 8.05(b) is invalid
or unenforceable, then the Trust Fund shall contribute to the amount paid or
payable by the Trustee as a result of such Trustee Liability in such proportion
as is appropriate to reflect the relative fault of any other parties on the one
hand and the Trustee on the other in connection with the actions or omissions
which resulted in such Trustee Liability, as well as any other relevant
equitable considerations.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be an association or a
corporation organized and doing business under the laws of the United States of
America or any State thereof or the District of Columbia, authorized under such
laws to exercise trust powers, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
banking authority. If such association or corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such association or corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. The Trustee shall also be an entity
with a credit rating of at least "AA" by each Rating Agency other than Moody's
and "Aa3" by Moody's or such other rating that shall not result in the
qualification, downgrading or withdrawal of the rating or ratings assigned to
one or more Classes of the Certificates by any Rating Agency. 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; provided, that if the Trustee shall cease to
be so eligible because its combined capital and surplus is no longer at least
$100,000,000 or its long-term unsecured debt rating no longer conforms to the
requirements of the immediately preceding sentence, and if the Trustee proposes
to the other parties hereto to enter into an agreement with (and reasonably
acceptable to) each of them, and if in light of such agreement the Trustee's
continuing to act in such capacity would not (as evidenced in writing by each
Rating Agency) cause any Rating Agency to qualify, downgrade or withdraw any
rating assigned thereby to any Class of Certificates, then upon the execution
and delivery of such agreement the Trustee shall not be required to resign, and
may continue in such capacity, for so long as none of the ratings assigned by
the Rating Agencies to the Certificates is adversely affected thereby. The
corporation or association serving as Trustee may have normal banking and trust
relationships with the Depositor, the Master Servicer, the Special Servicer and
their respective Affiliates.
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SECTION 8.07. Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Depositor, the Master
Servicer, the Special Servicer and to all Certificateholders at their respective
addresses set forth in the Certificate Register; provided however the Trustee
shall resign from its duties and obligations hereunder in the event that (i) the
Trustee and First Union National Bank through merger or consolidation shall
become affiliates of each other and (ii) no exchange of the REMIC interests
shall have occurred pursuant to Section 2.11. Upon receiving such notice of
resignation, the Master Servicer shall promptly appoint a successor trustee
meeting the requirements in Section 8.06 and acceptable to the Depositor 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 Depositor, the Special Servicer and the Certificateholders
by the Master Servicer. 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, or if the Trustee or Paying Agent (if different than the Trustee)
shall fail (other than by reason of the failure of either the Master Servicer or
the Special Servicer to timely perform its obligations hereunder or as a result
of other circumstances beyond the Trustee's reasonable control), to timely
deliver any report to be delivered by the Trustee pursuant to Section 4.02 and
such failure shall continue unremedied for a period of five days, or if the
Trustee or Paying Agent (if different from the Trustee) fails to make
distributions required pursuant to Section 3.05(b), 4.01 or 9.01, then the
Depositor may remove the Trustee and appoint a successor trustee, if necessary,
acceptable to the Master Servicer by written instrument, in duplicate, which
instrument shall be delivered to the Trustee so removed and to the successor
trustee. A copy of such instrument shall be delivered to the Master Servicer,
the Special Servicer and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the Voting
Rights may at any time remove the Trustee and appoint a successor trustee, if
necessary, 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 trustee so appointed. A
copy of such instrument shall be delivered to the Depositor, the Special
Servicer and the remaining Certificateholders by the successor so appointed. In
the event that the Trustee is terminated or removed pursuant to this Section
8.07, all of its rights and obligations under this Agreement and in and to the
Mortgage Loans shall be terminated, other than any rights or obligations that
accrued prior to the date of such termination or removal (including
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the right to receive all fees, expenses and other amounts (including, without
limitation, P&I Advances and accrued interest thereon) accrued or owing to it
under this Agreement, with respect to periods prior to the date of such
termination or removal and no termination without cause shall be effective until
the payment of such amounts to the Trustee).
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor, the Master Servicer, the
Special Servicer and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee all Mortgage Files and related documents
and statements held by it hereunder (other than any Mortgage Files at the time
held on its behalf by a third-party Custodian, which Custodian shall become the
agent of the successor trustee), and the Depositor, the Master Servicer, the
Special Servicer and the predecessor trustee shall execute and deliver such
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor trustee all such rights, powers,
duties and obligations, and to enable the successor trustee to perform its
obligations hereunder.
(b) No successor trustee shall accept appointment as provided in this
Section 8.08, unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, such 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, provided such entity shall be eligible under the provisions
of Section 8.06, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
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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 or the Special Servicer 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 cease to exist, become incapable of
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acting, resign or be removed, all of its estates, properties, rights, remedies
and trusts shall vest in and be exercised by the Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this Section
8.10 shall not relieve the Trustee of its duties and responsibilities hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may appoint at the Trustee's expense one or more Custodians to
hold all or a portion of the Mortgage Files as agent for the Trustee. Each
Custodian shall be a depository institution supervised and regulated by a
federal or state banking authority, shall have 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, Mortgage Loan
Seller or any Affiliate of the Depositor or Mortgage Loan Seller. Neither the
Master Servicer nor the Special Servicer shall have any duty to verify that any
such Custodian is qualified to act as such in accordance with the preceding
sentence. Any such appointment of a third party Custodian and the acceptance
thereof shall be pursuant to a written, agreement, which written agreement shall
(i) be consistent with this Agreement in all material respects and requires the
Custodian to comply with this Agreement in all material respects and requires
the Custodian to comply with all of the applicable conditions of this Agreement;
(ii) provide that if the Trustee shall for any reason no longer act in the
capacity of Trustee hereunder (including, without limitation, by reason of an
Event of Default), the successor trustee or its designee may thereupon assume
all of the rights and, except to the extent such obligations arose prior to the
date of assumption, obligations of the Custodian under such agreement or
alternatively, may terminate such agreement without cause and without payment of
any penalty or termination fee; and (iii) not permit the Custodian any rights of
indemnification that may be satisfied out of assets of the Trust Fund. The
appointment of one or more Custodians shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible for all acts
and omissions of any Custodian. The initial Custodian shall be the Trustee.
Notwithstanding anything herein to the contrary, if the Trustee is no longer the
Custodian, any provision or requirement herein requiring notice or any
information or documentation to be provided to the Custodian shall be construed
to require that such notice, information or documents also be provided to the
Trustee. Any Custodian hereunder (other than the Trustee) shall at all times
maintain a fidelity bond and errors and omissions policy in amounts customary
for custodians performing duties similar to those set forth in this Agreement.
SECTION 8.12. Appointment of Authenticating Agents.
(a) The Trustee may at the Trustee's expense appoint one or more
Authenticating Agents, which shall be authorized to act on behalf of the Trustee
in authenticating Certificates. The Trustee shall cause any such Authenticating
Agent to execute and deliver to the Trustee an instrument in which such
Authenticating Agent shall agree to act in such capacity, in accordance with the
obligations and responsibilities herein. Each Authenticating
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Agent must be organized and doing business under the laws of the United States
of America or of any State, authorized under such laws to do a trust business,
have a combined capital and surplus of at least $15,000,000, and be subject to
supervision or examination by federal or state authorities. Each Authenticating
Agent shall be subject to the same obligations, standard of care, protection and
indemnities as would be imposed on, or would protect, the Trustee hereunder. The
appointment of an Authenticating Agent shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible for all acts
and omissions of the Authenticating Agent. In the absence of any other Person
appointed in accordance herewith acting as Authenticating Agent, the Trustee
hereby agrees to act in such capacity in accordance with the terms hereof.
Notwithstanding anything herein to the contrary, if the Trustee is no longer the
Authenticating Agent, any provision or requirement herein requiring notice or
any information or documentation to be provided to the Authenticating Agent
shall be construed to require that such notice, information or documentation
also be provided to the Trustee.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at least 30
days' advance written notice of resignation to the Trustee, the Certificate
Registrar, the Master Servicer, the Special Servicer and the Depositor. The
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent, the Master
Servicer, the Certificate Registrar and the Depositor. Upon receiving a notice
of resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 8.12, the Trustee may appoint a successor
Authenticating Agent, in which case the Trustee shall given written notice of
such appointment to the Master Servicer, the Certificate Registrar and the
Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, that no successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 8.12. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent. No Authenticating Agent shall have responsibility or
liability for any action taken by it as such at the direction of the Trustee.
SECTION 8.13. Appointment of Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to Certificateholders hereunder. The Trustee shall cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in an Eligible Account in
trust for the benefit of the Certificateholders
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entitled thereto until such sums shall be paid to the Certificateholders. All
funds remitted by the Trustee or the Master Servicer to any such Paying Agent
for the purpose of making distributions shall be paid to Certificateholders on
each Distribution Date and any amounts not so paid shall be returned on such
Distribution Date to the Trustee or the Master Servicer, as applicable. If the
Paying Agent is not the Trustee or the Master Servicer, the Trustee or the
Master Servicer shall remit to the Paying Agent on the Business Day prior to
each Distribution Date, by wire transfer in immediately available funds, the
funds to be distributed on such Distribution Date. Any Paying Agent shall be
either a bank or trust company or otherwise authorized under law to exercise
corporate trust powers and shall have a rating of at least "A" (or its
equivalent) by each of Standard & Poor's and Moody's, or such lower rating as
will not result in qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates, as evidenced in writing by the Rating Agencies.
Any such appointment of a third party Paying Agent and the acceptance thereof
shall be pursuant to a written agreement, which written agreement shall (i) be
consistent with this Agreement in all material respects and requires the Paying
Agent to comply with this Agreement in all material respects and requires the
Paying Agent to comply with all of the applicable conditions of this Agreement;
(ii) provide that if the Trustee shall for any reason no longer act in the
capacity of Trustee hereunder (including, without limitation, by reason of an
Event of Default), the successor trustee or its designee may (A) thereupon
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Paying Agent under such agreement or (B)
terminate such agreement without cause and without payment of any penalty or
termination fee; and (iii) not permit the Paying Agent any rights of
indemnification that may be satisfied out of assets of the Trust Fund. The
appointment of any Paying Agent shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible for all acts and
omissions of any Paying Agent to the extent such Paying Agent would have been
responsible pursuant to the terms hereof. The initial Paying Agent shall be the
Trustee. Notwithstanding anything herein to the contrary, if the Trustee is no
longer the Authenticating Agent, any provision or requirement herein requiring
notice or any information to be provided to the Authenticating Agent shall be
construed to require that such notice, information or documentation also be
provided to the Trustee.
SECTION 8.14. Appointment of REMIC Administrators.
(a) The Trustee may appoint at the Trustee's expense, one or more REMIC
Administrators, which shall be authorized to act on behalf of the Trustee in
performing the functions set forth in Sections 3.17, 10.01 and 10.02 herein. The
Trustee shall cause any such REMIC Administrator to execute and deliver to the
Trustee an instrument in which such REMIC Administrator shall agree to act in
such capacity, with the obligations and responsibilities herein. The appointment
of a REMIC Administrator shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible for all acts and
omissions of the REMIC Administrator. Each REMIC Administrator must be
acceptable to the Trustee and must be organized and doing business under the
laws of the United States of America or of any State and be subject to
supervision or examination by federal or state authorities. In the absence of
any other Person appointed in accordance herewith acting as REMIC Administrator,
the Trustee hereby agrees to act in such capacity in accordance with the terms
hereof.
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(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Trustee
or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at least 30
days' advance written notice of resignation to the Trustee, the Certificate
Registrar, the Paying Agent, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any REMIC
Administrator by giving written notice of termination to such REMIC
Administrator, the Master Servicer, the Certificate Registrar and the Depositor.
Upon receiving a notice of resignation or upon such a termination, or in case at
any time any REMIC Administrator shall cease to be eligible in accordance with
the provisions of this Section 8.14, the Trustee may appoint a successor REMIC
Administrator, in which case the Trustee shall given written notice of such
appointment to the Master Servicer and the Depositor and shall mail notice of
such appointment to all Holders of Certificates; provided, however, that no
successor REMIC Administrator shall be appointed unless eligible under the
provisions of this Section 8.14. Any successor REMIC Administrator upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as REMIC Administrator. No REMIC Administrator
shall have responsibility or liability for any action taken by it as such at the
direction of the Trustee.
SECTION 8.15. Access to Certain Information.
The Trustee shall afford to the Master Servicer, the Special Servicer,
each Rating Agency and the Depositor, any Certificateholder and to the OTS, the
FDIC and any other banking or insurance regulatory authority that may exercise
authority over any Certificateholder, access to any documentation regarding the
Mortgage Loans within its control that may be required to be provided 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.
SECTION 8.16. Representations, Warranties and Covenants of Trustee.
(a) The Trustee hereby represents and warrants to the Master Servicer, the
Special Servicer and the Depositor and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States.
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's organizational documents or
constitute a default (or an event
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which, with notice or lapse of time, or both, would constitute a default)
under, or result in a material breach of, any material agreement or other
material instrument to which it is a party or by which it is bound.
(iii) Except to the extent that the laws of certain jurisdictions in
which any part of the Trust Fund may be located require that a co-trustee
or separate trustee be appointed to act with respect to such property as
contemplated by Section 8.10, the Trustee has the full power and authority
to carry on its business as now being conducted and 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 the other parties hereto, constitutes a valid, legal and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof (including with respect to any advancing
obligations hereunder), subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and the rights of creditors of banks, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely the ability of the
Trustee to perform its obligations under this Agreement.
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined adversely to
the Trustee, would prohibit the Trustee from entering into this Agreement
or, in the Trustee's good faith and reasonable judgment, is likely to
materially and adversely affect the ability of the Trustee to perform its
obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Trustee of or compliance by the Trustee with this
Agreement or the consummation of the transactions contemplated by this
Agreement has been obtained and is effective.
(b) The Trustee covenants that by August 31, 1999, any custom-made
software or hardware designed or purchased or licensed by the Trustee and used
by the Trustee in the course of the operation or management of, or the
compiling, reporting or generation of data required by this Agreement will not
contain any deficiency (x) in the ability of such software or hardware to
identify correctly or perform calculations or other processing with respect to
dates after August 31, 1999 or (y) that would cause such software or hardware to
be
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fit no longer for the purpose for which it was intended by reason of the
changing of the date from 1999 to 2000.
SECTION 8.17. Reports to the Securities and Exchange Commission; Available
Information.
The Trustee shall prepare for filing, and execute, on behalf of the Trust
Fund, and file with the Securities and Exchange Commission, each Distribution
Date Statement, Comparative Financial Status Report, REO Status Report, Watch
List, Delinquent Loan Status Report, Historical Loan Modification Report,
Historical Loss Estimate Report and CSSA Loan File Report on Form 8-K each month
and any and all reports, statements and information respecting the Trust Fund
and/or the certificates required to be filed on behalf of the Trust Fund under
the Exchange Act as the Trustee may be directed by the Depositor, until directed
in writing by the Depositor to discontinue such filings. Upon such filing with
the Securities and Exchange Commission, the Trustee shall promptly deliver to
the Depositor and the Master Servicer a copy of any such executed report,
statement or information. The Depositor shall promptly file, and exercise its
reasonable best efforts to obtain a favorable response to, no-action requests
to, or requests for other appropriate exemptive relief from, the Securities and
Exchange Commission regarding the usual and customary exemption from certain
reporting requirements granted to issuers of securities similar to the
Certificates. The Depositor agrees to indemnify and hold harmless the Trustee
with respect to any liability, cost or expenses, including reasonable attorneys'
fees, arising from the Trustee's execution of such reports, statements and
information that contain errors or omissions or is otherwise misleading,
provided, however, that if the indemnification provided for herein is invalid or
unenforceable, then the Depositor shall contribute to the amount paid by the
Trustee as a result of such liability in such amount as is necessary to limit
the Trustee's responsibility for any such payment to any amount resulting from
its own negligence or willful misconduct. The Trustee shall have no
responsibility to determine whether or not any filing may be required and shall
not have any responsibility to review or confirm in any way the accuracy or the
sufficiency of the contents of any such filing.
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage
Loans.
Subject to Section 9.02, the Trust Fund and the respective obligations and
responsibilities under this Agreement of the Depositor, the Master Servicer, the
Special Servicer and the Trustee (other than the obligations of the Paying Agent
on behalf of the Trustee to provide for and make payments to Certificateholders
as hereafter set forth) shall terminate upon payment (or provision for payment)
(i) 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 (A) the purchase by the Depositor, the Master Servicer, the
Special Servicer or the Majority Subordinate Certificateholder of all Mortgage
Loans and each REO Property remaining in REMIC I at a price equal to (1) the
aggregate Purchase Price of all the Mortgage Loans included in REMIC I, plus (2)
the appraised value of each REO Property, if any, included in REMIC I, such
appraisal to be conducted by an Independent Appraiser selected by the Master
Servicer and approved by the Trustee, minus (3) if the purchaser is the Master
Servicer, the aggregate amount of unreimbursed Advances made by the Master
Servicer, together with any interest accrued and payable to the Master Servicer
in respect of unreimbursed Advances in accordance with Sections 3.03(d) and
4.03(d) and any unpaid Master Servicing Fees remaining outstanding (which items
shall be deemed to have been paid or reimbursed to the Master Servicer in
connection with such purchase), and (B) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan or REO Property
remaining in REMIC I, and (ii) to the Trustee, the Master Servicer, the Special
Servicer and the officers, directors, employees and agents of each of them of
all amounts which may have become due and owing to any of them hereunder;
provided, however, that in no event shall the trust created hereby continue
beyond the earlier of (i) 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 and (ii) the
Legal Final Distribution Date.
The Depositor, the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder may at its option elect to purchase all of the
Mortgage Loans and each REO Property remaining in REMIC I as contemplated by
clause (i) of the preceding paragraph by giving written notice to the other
parties hereto no later than 60 days prior to the anticipated date of purchase;
provided, however, that (i) the aggregate Stated Principal Balance of the
Mortgage Pool at the time of such election is less than 1% of the aggregate
Cut-off Date Balance of the Mortgage Pool set forth in the Preliminary
Statement, and (ii) the Master Servicer shall not have the right to effect such
a purchase if, within 30 days following the Master Servicer's delivery of a
notice of election pursuant to this paragraph, the Depositor, the Special
Servicer or the Majority Subordinate Certificateholder shall give notice of its
election to purchase all of the Mortgage Loans and each REO Property remaining
in REMIC I and shall thereafter effect such purchase in accordance with the
terms hereof. The Master
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Servicer, the Depositor or the Majority Subordinate Certificateholder shall not
have the right to effect such a purchase if, within 30 days following the
Special Servicer's delivery of a notice of election pursuant to this paragraph,
the Special Servicer shall give notice of its election to purchase all of the
Mortgage Loans and each REO Property remaining in REMIC I and shall thereafter
effect such purchase in accordance with the terms hereof. If the Trust Fund is
to be terminated in connection with the Master Servicer's, the Special
Servicer's, the Majority Subordinate Certificateholder's or the Depositor's
purchase of all of the Mortgage Loans and each REO Property remaining in REMIC
I, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor, as applicable, shall deliver to the Paying
Agent for deposit in the Distribution Account not later than the P&I Advance
Date relating to the Distribution Date on which the final distribution on the
Certificates is to occur an amount in immediately available funds equal to the
above-described purchase price. In addition, the Master Servicer shall transfer
to the Distribution Account all amounts required to be transferred thereto on
such P&I Advance Date from the Certificate Account pursuant to the first
paragraph of Section 3.04(b), together with any other amounts on deposit in the
Certificate Account that would otherwise be held for future distribution. Upon
confirmation that such final deposit has been made, the Trustee shall release or
cause to be released to the Master Servicer, the Special Servicer, the Majority
Subordinate Certificateholder or the Depositor, as applicable, the Mortgage
Files for the remaining Mortgage Loans and shall execute all assignments,
endorsements and other instruments furnished to it by the Master Servicer, the
Special Servicer, the Majority Subordinate Certificateholder or the Depositor,
as applicable, as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties to the Depositor, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder (or their respective
designees), as applicable. Any transfer of Mortgage Loans to the Depositor
pursuant to this paragraph shall be on a servicing-released basis.
Notice of any termination shall be given promptly by the Trustee by letter
to Certificateholders mailed (a) if such notice is given in connection with the
Depositor's, the Master Servicer's, the Special Servicer's or the Majority
Subordinate Certificateholder's purchase 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 Determination Date in such month, in each case specifying (i) the
Distribution Date upon which the Trust Fund will terminate and final payment of
the Certificates will be made, (ii) the amount of any such final payment and
(iii) that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the offices of the Certificate Registrar or such other location
therein designated. The Trustee shall give such notice to the Master Servicer,
the Special Servicer and the Depositor at the time such notice is given to
Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Paying Agent shall
distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that
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portion of the amounts then on deposit in the Distribution Account that are
allocable to payments on the Class of Certificates so presented and surrendered.
Amounts on deposit in the Distribution Account as of the final Distribution
Date, exclusive of any portion thereof that would be payable to any Person in
accordance with clauses (ii) through (vi) of Section 3.05(b), and further
exclusive of any portion thereof that represents Prepayment Premiums and Yield
Maintenance Charges, shall be allocated in the following order of priority, in
each case to the extent of remaining available funds:
(i) to distributions of interest to the Holders of the Senior
Certificates, in an amount equal to, and pro rata in accordance with, all
Distributable Certificate Interest in respect of each Class of Senior
Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(ii) to distributions of principal to the Holders of the Class A-1
and Class A-2 Certificates, in an amount equal to, and pro rata in
accordance with, the respective Class Principal Balances thereof
outstanding immediately prior to such Distribution Date;
(iii) to distributions to the Holders of the Class A-1 and Class A-2
Certificates, in an amount equal to, pro rata in accordance with, and in
reimbursement of, all Realized Losses and Additional Trust Fund Expenses,
if any, previously allocated to each such Class of Certificates and not
previously reimbursed;
(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 the Class B Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(v) to distributions of principal to the Holders of the Class B
Certificates, in an amount equal to the Class Principal Balance of the
Class B Certificates outstanding immediately prior to 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, previously allocated to the Class
B Certificates and not previously reimbursed;
(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 the Class C Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(viii) to distributions of principal to the Holders of the Class C
Certificates, in an amount equal to the Class Principal Balance of the
Class C Certificates outstanding immediately prior to such Distribution
Date;
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(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, previously allocated to the Class
C Certificates and not previously reimbursed;
(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 the Class D Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xi) to distributions of principal to the Holders of the Class D
Certificates, in an amount equal to the Class Principal Balance of the
Class D Certificates outstanding immediately prior to 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, previously allocated to the Class
D Certificates and not previously reimbursed;
(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 the Class E Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xiv) to distributions of principal to the Holders of the Class E
Certificates, in an amount equal to the Class Principal Balance of the
Class E Certificates outstanding immediately prior to 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, previously allocated to the Class
E Certificates and not previously reimbursed;
(xvi) to distributions of interest to the Holders of the Class IO-2
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class IO-2 Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates;
(xvii) to distributions of interest to the Holders of the Class F
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class F Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xviii) to distributions of principal to the Holders of the Class F
Certificates, in an amount equal to the Class Principal Balance of the
Class F Certificates outstanding immediately prior to such Distribution
Date;
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(xix) to distributions to the Holders of the Class F Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses if any, previously allocated to the Class F
Certificates and not previously reimbursed;
(xx) to distributions of interest to the Holders of the Class G
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class G Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxi) to distributions of principal to the Holders of the Class G
Certificates, in an amount equal to the Class Principal Balance of the
Class G Certificates outstanding immediately prior to such Distribution
Date;
(xxii) to distributions to the Holders of the Class G Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
G Certificates and not previously reimbursed;
(xxiii) to distributions of interest to the Holders of the Class H
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class H Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxiv) to distributions of principal to the Holders of the Class H
Certificates, in an amount equal to the Class Principal Balance of the
Class H Certificates outstanding immediately prior to such Distribution
Date;
(xxv) to distributions to the Holders of the Class H Certificates in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class
H Certificates and not previously reimbursed;
(xxvi) to distributions to the Holders of the Class R-I, R-II, R-III
and R-IV (if any) Certificates, as applicable, 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 (xxv) above.
Any Prepayment Premiums and Yield Maintenance Charges on deposit in the
Certificate Account as of the final Distribution Date shall be distributed among
the Holders of the Class A-1, Class A-2, Class B, Class C, Class D and Class E
Certificates in accordance with Section 4.01(b). 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
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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 Paying Agent 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 Paying Agent, 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, and shall deal with all such unclaimed amounts in
accordance with applicable law. 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.
All actual distributions on the respective Classes of Regular Certificates
on the final Distribution Date in accordance with foregoing provisions of this
Section 9.01 shall be deemed to first have been distributed from REMIC I to
REMIC II on the various REMIC I Regular Interests in accordance with Section
4.01(j), and then from REMIC II to REMIC III on the various REMIC II Regular
Interests in accordance with Section 4.01(h), and following the Transition Date,
then from REMIC III to REMIC IV on the various REMIC III Regular Interests in
accordance with Section 4.01(i).
SECTION 9.02. Additional Termination Requirements.
(a) If the Depositor, the Master Servicer, the Special Servicer or the
Majority Subordinate Certificate holders purchases all of the Mortgage Loans and
each REO Property remaining in REMIC I as provided in Section 9.01, the Trust
Fund (and, accordingly, REMIC I, REMIC II, REMIC III and REMIC IV (if any))
shall be terminated in accordance with the following additional requirements,
unless the Person affecting the purchase obtains at its own expense and delivers
to the Trustee and, in the case of the Depositor, to the Trustee and the Master
Servicer, an Opinion of Counsel, addressed to the Trustee and the Master
Servicer, to the effect that the failure of the Trust Fund to comply with the
requirements of this Section 9.02 will not result in the imposition of taxes on
"prohibited transactions" of REMIC I, REMIC II, REMIC III and REMIC IV (if any)
as defined in Section 860F of the Code or cause REMIC I, REMIC II, REMIC III and
REMIC IV (if any) to fail to qualify as a REMIC at any time that any
Certificates are outstanding:
(i) the Trustee shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return for
each of REMIC I, REMIC II, REMIC III and REMIC IV (if any) pursuant to
Treasury regulation Section 1.860F-1 and shall satisfy all requirements of
a qualified liquidation under Section 860F of the Code and any regulations
thereunder as set forth in an Opinion of Counsel obtained at the expense
of the Trust Fund;
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(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, the Depositor,
the Special Servicer or the Majority Subordinate Certificate holders, as
applicable, for cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Paying Agent shall distribute or credit, or cause to be
distributed or credited, to the Certificateholders in accordance with
Section 9.01 all cash on hand (other than cash retained to meet claims),
and each of REMIC I, REMIC II, REMIC III and REMIC IV (if any) shall
terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof hereby agree
to authorize the Trustee to specify the 90-day liquidation period for each of
REMIC I, REMIC II, REMIC III and REMIC IV (if any), which authorization shall be
binding upon all successor Certificateholders.
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I, REMIC
II, REMIC III and REMIC IV as a REMIC under the Code and, if necessary, under
applicable state law. Such election will be made on Form 1066 or other
appropriate federal or state Tax Returns for the taxable year ending on the last
day of the calendar year in which the Certificates are issued.
(b) The REMIC I Regular Interests, the REMIC II Regular Interests, the
REMIC III Regular Interests and, on and after the Transition Date, the REMIC IV
Regular Interests, are hereby designated as "regular interests" (within the
meaning of Section 860G(a)(1) of the Code) in REMIC I, REMIC II, REMIC III and,
on and after the Transition Date, REMIC IV, respectively. The Class R-I
Certificates, the Class R-II Certificates, the Class R-III Certificates and, on
and after the Transition Date, the R-IV Certificates, are hereby and thereby
designated as the single class of "residual interests" (within the meaning of
Section 860G(a)(2) of the Code) in REMIC I, REMIC II, REMIC III and, on and
after the Transition Date, REMIC IV, respectively. None of the Master Servicer,
the Special Servicer or the Trustee shall (to the extent within its control)
permit the creation of any other "interests" in REMIC I, REMIC II, REMIC III or
REMIC IV (within the meaning of Treasury regulation Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of REMIC I,
REMIC II and REMIC III within the meaning of Section 860G(a)(9) of the Code. The
Transition Date is hereby designated as the "startup day" of REMIC IV within the
meaning of Section 860G(a)(9) of the Code.
(d) The related Plurality Residual Certificateholder as to the applicable
taxable year is hereby designated as the Tax Matters Person of each of REMIC I,
REMIC II, REMIC III and REMIC IV (if any), and shall act on behalf of the
related REMIC in relation to any tax matter or controversy and shall represent
the related REMIC in any administrative or judicial proceeding relating to an
examination or audit by any governmental taxing authority; provided that the
REMIC Administrator is hereby irrevocably appointed to act and shall act (in
consultation with the Tax Matters Person for each of REMIC I, REMIC II, REMIC
III and REMIC IV (if any)) as agent and attorney-in-fact for the Tax Matters
Person for each of REMIC I, REMIC II, REMIC III and REMIC IV in the performance
of its duties as such.
(e) For purposes of Treasury regulation Section 1.860G-1(a)(4)(iii), the
Legal Final Distribution Date has been designated the "latest possible maturity
date" of each REMIC I Regular Interest, each REMIC II Regular Interest, each
REMIC III Regular Interest and each REMIC IV Regular Interest (if any).
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(f) Except as otherwise provided in Section 3.17(a) and subsections (i)
and (j) below, the REMIC Administrator shall pay out of its own funds any and
all routine tax administration expenses of the Trust Fund incurred with respect
to each of REMIC I, REMIC II, REMIC III and REMIC IV (if any) (but not including
any professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to the Trust Fund that involve the Internal
Revenue Service or state tax authorities which extraordinary expenses shall be
payable or reimbursable to the Trustee from the Trust Fund unless otherwise
provided in Section 10.01(i) or 10.01(j)).
(g) Within 30 days after the Closing Date, the REMIC Administrator shall
prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for the Trust Fund. The REMIC Administrator
shall also prepare and file with the Internal Revenue Service an additional Form
8811 with respect to REMIC IV within 30 days of the Transition Date. In
addition, the REMIC Administrator shall prepare, sign and file all of the other
Tax Returns in respect of REMIC I, REMIC II, REMIC III and REMIC IV (if any).
The expenses of preparing and filing such returns shall be borne by the REMIC
Administrator without any right of reimbursement therefor. The other parties
hereto shall provide on a timely basis to the REMIC Administrator or its
designee such information with respect to each of REMIC I, REMIC II, REMIC III
and REMIC IV (if any) as is in its possession and reasonably requested by the
REMIC Administrator to enable it to perform its obligations under this Article.
Without limiting the generality of the foregoing, the Depositor, within ten days
following the REMIC Administrator's request therefor, shall provide in writing
to the REMIC Administrator such information as is reasonably requested by the
REMIC Administrator for tax purposes, as to the valuations and issue prices of
the Certificates, and the REMIC Administrator's duty to perform its reporting
and other tax compliance obligations under this Article X shall be subject to
the condition that it receives from the Depositor such information possessed by
the Depositor that is necessary to permit the Trustee to perform such
obligations.
(h) The REMIC Administrator shall perform on behalf of each of REMIC I,
REMIC II, REMIC III and REMIC IV (if any) 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 Internal Revenue Service
or, with respect to State and Local Taxes, any state or local taxing authority.
Included among such duties, the REMIC Administrator shall provide to: (i) any
Transferor of a Residual Certificate, such information as is necessary for the
application of any tax relating to the transfer of a Residual Certificate to any
Person who is not a Permitted Transferee; (ii) the Certificateholders, such
information or reports as are required by the Code or the REMIC Provisions,
including, without limitation, reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption as
required hereunder); and (iii) the Internal Revenue Service, the name, title,
address and telephone number of the Person who will serve as the representative
of each of REMIC I, REMIC II, REMIC III and REMIC IV (if any).
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(i) The REMIC Administrator shall perform its duties hereunder so as to
maintain the status of each of REMIC I, REMIC II, REMIC III and REMIC IV (if
any) as a REMIC under the REMIC Provisions (and the Trustee, the Master Servicer
and the Special Servicer shall assist the REMIC Administrator to the extent
reasonably requested by the REMIC Administrator and to the extent of information
within the Trustee's, the Master Servicer's or the Special Servicer's possession
or control). None of the REMIC Administrator, Master Servicer, the Special
Servicer, or the Trustee shall knowingly take (or cause any of REMIC I, REMIC
II, REMIC III or REMIC IV (if any) to take) any action or fail to take (or fail
to cause to be taken) any action that, under the REMIC Provisions, if taken or
not taken, as the case may be, could (i) endanger the status of any of REMIC I,
REMIC II, REMIC III or REMIC IV (if any) as a REMIC, or (ii) except as provided
in Section 3.17(a), result in the imposition of a tax upon any of REMIC I, REMIC
II, REMIC III or REMIC IV (if any) (including, but not limited to, the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code, the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code or the result
in the imposition of a tax on "net income from foreclosure property" as defined
in Section 860G(c) of the Code) (any such endangerment or imposition or, except
as provided in Section 3.17(a), imposition of a tax, an "Adverse REMIC Event"),
unless the REMIC Administrator has obtained or received an Opinion of Counsel
(at the expense of the party requesting such action or at the expense of the
Trust Fund if the REMIC Administrator seeks to take such action or to refrain
from acting for the benefit of the Certificateholders) to the effect that the
contemplated action will not result in an Adverse REMIC Event. The REMIC
Administrator shall not take any action or fail to take any action (whether or
not authorized hereunder) as to which the Master Servicer or the Special
Servicer has advised it in writing that either the Master Servicer or the
Special Servicer has received or obtained an Opinion of Counsel to the effect
that an Adverse REMIC Event could occur with respect to such action. In
addition, prior to taking any action with respect to REMIC I, REMIC II, REMIC
III or REMIC IV (if any), or causing any of REMIC I, REMIC II, REMIC III or
REMIC IV (if any) to take any action, that is not expressly permitted under the
terms of this Agreement, the Master Servicer and the Special Servicer shall
consult with the REMIC Administrator or its designee, in writing, with respect
to whether such action could cause an Adverse REMIC Event to occur. Neither the
Master Servicer nor the Special Servicer shall take any such action or cause any
of REMIC I, REMIC II, REMIC III or REMIC IV (if any) to take any such action as
to which the REMIC Administrator has advised it in writing that an Adverse REMIC
Event could occur, and neither the Master Servicer nor the Special Servicer
shall have any liability hereunder for any action taken by it in accordance with
the written instructions of the REMIC Administrator. The REMIC Administrator may
consult with counsel to make such written advice, and the cost of same shall be
borne by the party seeking to take the action not expressly permitted by this
Agreement, but in no event at the cost or expense of the Trust Fund or the
Trustee. At all times as may be required by the Code, the REMIC Administrator
shall make reasonable efforts to ensure that substantially all of the assets of
REMIC I, REMIC II, REMIC III or REMIC IV (if any) 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.
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(j) If any tax is imposed on any of REMIC I, REMIC II, REMIC III or REMIC
IV (if any), including, without limitation, "prohibited transactions" taxes as
defined in Section 860F(a)(2) of the Code, any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, any taxes on
contributions to REMIC I, REMIC II, REMIC III or REMIC IV (if any) 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 provided that no liability shall be imposed upon the REMIC
Administrator under this Clause if another party has responsibility for payment
of such tax under Clauses (iii) or (v) of this Section; (ii) 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; (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 Trustee, if such tax arises out of or results from a breach by the
Trustee of any of its obligations under Article IV, Article VIII or this Article
X; (v) the Mortgage Loan Seller, if such tax was imposed due to the fact that
any of the Mortgage Loans did not, at the time of their transfer to the REMIC I,
constitute a "qualified mortgage" as defined in Section 860G(a)(3) of the Code;
or (vi) the Trust Fund, 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 Fund. Any such amounts payable by the Trust Fund shall be paid by
the Paying Agent upon the written direction of the REMIC Administrator out of
amounts on deposit in the Distribution Account in reduction of the Available
Distribution Amount pursuant to Section 3.05(b).
(k) The REMIC Administrator shall, for federal income tax purposes,
maintain books and records with respect to each of REMIC I, REMIC II, REMIC III
and REMIC IV (if any) on a calendar year and on an accrual basis.
(l) Following the related Startup Day, none of the Trustee, the Master
Servicer and the Special Servicer shall accept any contributions of assets to
REMIC I, REMIC II, REMIC III or REMIC IV (if any) unless it shall have received
an Opinion of Counsel (at the expense of the party seeking to cause such
contribution and in no event at the expense of the Trust Fund or the Trustee) 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.
(m) None of the Trustee, the Master Servicer and the Special Servicer
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) the default or foreclosure 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, (B) the bankruptcy of REMIC I,
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REMIC II, REMIC III or REMIC IV (if any), (C) the termination of REMIC I, REMIC
II, REMIC III and REMIC IV (if any) pursuant to Article IX of this Agreement, or
(D) a purchase of Mortgage Loans pursuant to or as contemplated by Article II or
III of this Agreement); (ii) the sale or disposition of any investments in the
Certificate Account, the Distribution Account or the REO Account for gain; or
(iii) the acquisition of any assets for REMIC I, REMIC II, REMIC III or REMIC IV
(if any) (other than (1) a Mortgaged Property acquired through foreclosure, deed
in lieu of foreclosure or otherwise in respect of a defaulted Mortgage Loan, (2)
a Qualified Substitute Mortgage Loan pursuant to Article II hereof and (3)
Permitted Investments acquired in connection with the investment of funds in the
Certificate Account, the Distribution Account or the REO Account); in any event
unless it has received an Opinion of Counsel (at the expense of the party
seeking to cause such sale, disposition, or acquisition but in no event at the
expense of the Trust Fund or the Trustee) to the effect that such sale,
disposition, or acquisition will not cause: (x) REMIC I, REMIC II, REMIC III or
REMIC IV (if any) to fail to qualify as a REMIC at any time that any
Certificates are outstanding; or (y) the imposition of any tax on REMIC I, REMIC
II, REMIC III or REMIC IV (if any) under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(n) Except as permitted by Section 3.17(a), none of the Trustee, the
Master Servicer and the Special Servicer shall enter into any arrangement by
which REMIC I, REMIC II, REMIC III or REMIC IV (if any) will receive a fee or
other compensation for services nor permit REMIC I, REMIC II, REMIC III or REMIC
IV (if any) 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.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee, 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 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, or (v) if such amendment, as evidenced by an Opinion of Counsel
delivered to the Master Servicer, the Special Servicer and the Trustee, 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 any of the REMICs created
hereunder 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 any such REMIC; provided that such action (except any amendment
described in clause (v) above) shall not, as evidenced by an Opinion of Counsel
obtained by or delivered to the Master Servicer, the Special Servicer and the
Trustee, adversely affect in any material respect the interests of any
Certificateholder; and provided further that the Master Servicer, the Special
Servicer and the Trustee shall have first obtained from each Rating Agency
written confirmation that such amendment will not result in the qualification,
downgrade or withdrawal of the rating on any Class of Certificates.
(b) This Agreement may also be amended from time to time by the agreement
of the Depositor, the Master Servicer, the Special Servicer and the Trustee 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
Mortgage Loans that are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, (ii) as evidenced by an Opinion
of Counsel obtained by or delivered to the Master Servicer, the Special Servicer
and the Trustee, adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in (i)
without the consent of the Holders of all Certificates of such Class, (iii)
modify the provisions of this Section 11.01 without the consent of the Holders
of all Certificates then outstanding, (iv) modify the definition of Servicing
Standard or the provisions
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of Section 3.20 without the consent of the Holders of Certificates entitled to
all of the Voting Rights or (v) modify the specified percentage of Voting Rights
which are required to be held by Certificateholders to consent or not to object
to any particular action pursuant to any provision of this Agreement without the
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 or any Affiliate of the Depositor shall be entitled to the same
Voting Rights with respect to matters described above as they would if any other
Person held such Certificates, so long as neither the Depositor nor any of its
Affiliates is performing servicing duties with respect to any of the Mortgage
Loans.
(c) Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall first have
obtained or been furnished with an Opinion of Counsel (at the expense of the
party seeking such amendment) to the effect that (i) such amendment or the
exercise of any power granted to the Trustee, the Master Servicer or the Special
Servicer in accordance with such amendment will not result in the imposition of
a tax on any of REMIC I, REMIC II, REMIC III or REMIC IV (if any) pursuant to
the REMIC Provisions or cause any of REMIC I, REMIC II, REMIC III or REMIC IV
(if any) to fail to qualify as a REMIC at any time that any Certificates are
outstanding and (ii) such amendment complies with the provisions of this Section
11.01.
(d) Promptly after the execution of any such amendment, the Trustee shall
send a copy thereof to each Certificateholder.
(e) It shall not be necessary for the consent of Certificateholders under
this Section 11.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
(f) Each of the Master Servicer, the Special Servicer and the Trustee may
but shall not be obligated to enter into any amendment pursuant to this Section
that affects its rights, duties and immunities under this Agreement or
otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to Section
11.01(a), (b) or (c) shall be borne by the Person seeking the related amendment,
except that if the Master Servicer, the Special Servicer or the Trustee requests
any amendment of this Agreement that protects or is in furtherance of the rights
and interests of Certificateholders, the cost of any Opinion of Counsel required
in connection therewith pursuant to Section 11.01(a) or (c) shall be payable out
of the Certificate Account or the Distribution Account pursuant to Section 3.05.
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
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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 Fund, but only upon direction accompanied by an Opinion of
Counsel (the cost of which may be paid out of the Certificate Account pursuant
to Section 3.05(a)) to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders; provided, however,
that the Trustee shall have no obligation or responsibility to determine whether
any such recordation of this Agreement is required.
(b) For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder shall have any right to vote (except as expressly
provided for herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any provision
of this Agreement to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Agreement or any Mortgage Loan,
unless, with respect to any suit, action or proceeding upon or under or with
respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates 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
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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, 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: (i) in the case of the Depositor, First Union
Commercial Mortgage Securities, Inc., One First Union Center, Charlotte, North
Carolina 28228, Attention: Barry Reiner, facsimile number: 704-383-1356; (ii) in
the case of the Master Servicer, First Union National Bank, First Union Capital
Markets, Charlotte Plaza, 23 Floor, 201 South College Street, Charlotte, North
Carolina 28288-1075, Attention: First Union Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, FUNB Series 1999-C1, facsimile
number: 704-383-9356; (iii) in the case of the Special Servicer, 760 NW 107th
Avenue, Suite 400, Miami, Florida 33172, facsimile number (305) 226 7691; (iv)
in the case of the Trustee, Norwest Bank Minnesota, National Association,
Corporate Trust Department, 11000 Broken Land Parkway, Columbia, Maryland
21044-3562, Attention: Corporate Trust Services (CMBS)--First Union Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, FUNB Series
1999-C1, facsimile number 410-884-2360; (v) in the case of the Underwriters to
each of First Union Capital Markets Group, One First Union Center, DC6,
Charlotte, North Carolina 28288-1075, Attention: Craig Lieberman, First Union
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, FUNB
Series 1999-C1, facsimile number: 704-374-6435 and Morgan Stanley & Co.
Incorporated, 1585 Broadway, New York, New York 10036, Attention: Russell
Rahdany, First Union Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, FUNB Series 1999-C1, facsimile number:(212) 761-0350; (vi) in the
case of the Rating Agencies, (A) Moody's Investors Service, Inc., 99 Church
Street, New York, New York, Attention: CMBS-Monitoring, facsimile number
212-553-1350; and (B) Standard & Poor's Ratings Group, 25 Broadway, New York,
New York 10004, Attention: Real Estate Ratings Group, Surveillance Manager,
facsimile number: 212-412-0597; 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.
195
<PAGE>
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. Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right, title
and interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. However, if,
notwithstanding the aforementioned intent of the parties, the Mortgage Loans are
held to be property of the Depositor, then, (a) it is the express intent of the
parties that such conveyance be deemed a pledge of the Mortgage Loans by the
Depositor to the Trustee for the benefit of the Certificateholders to secure a
debt or other obligation of the Depositor, and (b) (i) this Agreement shall also
be deemed to be a security agreement within the meaning of Articles 8 and 9 of
the Uniform Commercial Code of the applicable jurisdiction; (ii) the conveyance
provided for in Article II hereof shall be deemed to be a grant by the Depositor
to the Trustee for the benefit of the Certificateholders of a security interest
in all of the Depositor's right, title and interest in and to the Mortgage
Loans, and all amounts payable to the holder of the Mortgage Loans in accordance
with the terms thereof, and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all amounts, other than investment
earnings, from time to time held or invested in the Certificate Account, the
Distribution Account or, if established, the REO Account whether in the form of
cash, instruments, securities or other property; (iii) the assignment to the
Trustee of the interest of the Depositor as contemplated by Article II hereof
shall be deemed to be an assignment of any security interest created hereunder;
(iv) the possession by the Trustee or any of its agents, including, without
limitation, the Custodian, 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" for purposes of
perfecting the security interest pursuant to Section 9-305 of the Uniform
Commercial Code of the applicable jurisdiction; and (v) notifications to persons
(other than the Trustee) holding such property, and acknowledgments, receipts or
confirmations from persons (other than the Trustee) holding such property, shall
be deemed notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, bailees or agents (as applicable) of the secured party
for the purpose of perfecting such security interest under applicable law. The
Depositor and the Trustee shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of this
Agreement.
196
<PAGE>
SECTION 11.08. Streit Act.
Any provisions required to be contained in this Agreement by Section 126
of Article 4-A of the New York Real Property Law are hereby incorporated herein,
and such provisions shall be in addition to those conferred or imposed by this
Agreement; provided, however, that to the extent that such Section 126 shall not
have any effect, and if said Section 126 should at any time be repealed or cease
to apply to this Agreement or be construed by judicial decision to be
inapplicable, said Section 126 shall cease to have any further effect upon the
provisions of this Agreement. In case of a conflict between the provisions of
this Agreement and any mandatory provisions of Article 4-A of the New York Real
Property Law, such mandatory provisions of said Article 4-A shall prevail,
provided that if said Article 4-A shall not apply to this Agreement, should at
any time be repealed, or cease to apply to this Agreement or be construed by
judicial decision to be inapplicable, such mandatory provisions of such Article
4-A shall cease to have any further effect upon the provisions of this
Agreement.
SECTION 11.09. 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. Each of
the Sub-Servicers shall be a third party beneficiary to obligations of the
Trustee under Section 3.22(d), provided that the sole remedy for any claim by a
Sub-Servicer as a third party beneficiary pursuant to this Section 11.09 shall
be against the Trustee solely in its corporate capacity and no Sub-Servicer
shall have any rights or claims against the Trust Fund or any party hereto
(other than the Trustee in its corporate capacity as set forth in this Section
11.09) as a result of any rights conferred on such Sub-Servicer as a third party
beneficiary pursuant to this Section 11.09. This Agreement may not be amended in
any manner that would adversely affect the rights of any third party beneficiary
hereof without its consent. No other person, including, without limitation, any
Mortgagor, shall be entitled to any benefit or equitable right, remedy or claim
under this Agreement.
SECTION 11.10. 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 11.11. Notices to Rating Agencies and Underwriters.
(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 change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
197
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(iii) the resignation or termination of the Trustee, the Master
Servicer or the Special Servicer;
(iv) the repurchase of Mortgage Loans by the Mortgage Loan Seller
pursuant to the Mortgage Loan Purchase Agreement;
(v) any change in the location of the Distribution Account;
(vi) the final payment to any Class of Certificateholders; and
(vii) any sale or disposition of any Mortgage Loan or REO Property.
(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
(ii) any change in the location of the Certificate Account.
(c) The Special Servicer shall furnish each Rating Agency with respect to
a non-performing or defaulted Mortgage Loan such information as the Rating
Agency shall reasonably request and which the Special Servicer can reasonably
provide in accordance with applicable law.
(d) To the extent applicable, each of the Master Servicer and the Special
Servicer shall promptly furnish to each Rating Agency copies of the following
items:
(i) each of its annual statements as to compliance described in
Section 3.13;
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14;
(iii) any Officers' Certificate delivered to the Trustee pursuant to
Section 4.03(c) or 3.08; and
(iv) each of the reports described in Section 3.12(a) and the
statements and reports described in Sections 3.12(b), 3.12(c) and 3.12(d).
(e) The Trustee shall (i) make available to each Rating Agency, upon
reasonable notice, the items described in Section 3.15(a) and (ii) promptly
deliver to each Rating Agency a copy of any notices given pursuant to Section
7.03(a) or Section 7.03(b).
(f) The Trustee shall promptly deliver to each Rating Agency a copy of
each statement or report described in Section 4.02.
198
<PAGE>
(g) Each of the Trustee, the Master Servicer and the Special Servicer
shall provide to each Rating Agency such other information with respect to the
Mortgage Loans and the Certificates, to the extent such party possesses such
information, as such Rating Agency shall reasonably request.
(h) Notwithstanding any provision herein to the contrary, each of the
Master Servicer, the Special Servicer or the Trustee shall deliver to any
Underwriter any report prepared by such party hereunder upon request. Until
further notice Morgan Stanley & Co. hereby requests each property inspection
report prepared pursuant to Section 3.12(a).
SECTION 11.12. Complete Agreement.
This Agreement embodies the complete agreement among the parties and may
not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
199
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
FIRST UNION COMMERCIAL MORTGAGE
SECURITIES, INC.
Depositor
By: /s/ CRAIG LIEBERMAN
-------------------
Name: Craig Lieberman
Title: Vice President
FIRST UNION NATIONAL BANK
Master Servicer
By: /s/ TIMOTHY S. RYAN
---------------------
Name: Timothy S. Ryan
Title: Vice President
LENNAR PARTNERS, INC.
Special Servicer
By: /s/ JEFFREY P. KRASNOFF
-----------------------
Name: Jeffrey P. Krasnoff
Title: President
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
Trustee
By: /s/ JACK A. AINI
-----------------------
Name: Jack A. Aini
Title: Vice President
200
<PAGE>
EXHIBIT A
Forms of Certificates
<PAGE>
EXHIBIT A-1
Form of Class A-1 Certificate
<PAGE>
CLASS A-1 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
FUNB SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting of a pool of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
FIRST UNION
COMMERCIAL MORTGAGE TRUST
Pass-Through Class Principal Balance of
Rate: Variable the Class A-1 Certificates as
of the Closing Date:
[$_________ ]
Date of Pooling and Servicing Initial Certificate Principal
Agreement: as of December 1, 1998 Balance of this Class A-1
Certificate as of the Closing
Date: [$_________ ]
Closing Date: December 30, 1998 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
[$_____]
First Distribution Date:
January 15, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota,
National Association
Special Servicer:
Lennar Partners, Inc.
Certificate No. 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 MASTER SERVICER, 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 FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (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 POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
SOLELY 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 INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G
AND CLASS H CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE AND THE CLASS A-2 CERTIFICATES MAY BE
REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that ______________________ is the registered owner of the
Percentage Interest evidenced
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<PAGE>
by this Class A-1 Certificate (obtained by dividing the principal amount of this
Class A-1 Certificate (its "Certificate Principal Balance") as of the Closing
Date by the aggregate principal amount of all the Class A-1 Certificates (their
"Class Principal Balance") as of the Closing Date) in that certain beneficial
ownership interest evidenced by all the Class A-1 Certificates in the Trust Fund
created pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among First Union Commercial Mortgage Securities, Inc.
(herein called the "Depositor", which term includes any successor entity under
the Agreement), First Union National Bank (in such capacity, herein called the
"Master Servicer", which term includes any successor entity under the
Agreement), Lennar Partners, Inc. in such capacity, herein called the "Special
Servicer", which term includes any successor entity under the Agreement), and
Norwest Bank Minnesota, National Association (herein called the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. 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 to the Holders of the
Class A-1 Certificates on the applicable Distribution Date pursuant to the
Agreement. The Distribution Date shall in no case be earlier than the fourth
business day following the Determination Date in the month in shich such
Determination Date occurs. All distributions made under the Agreement on the
Class A-1 Certificates will be made by Norwest Bank Minnesota, National
Association, as paying agent (the "Paying Agent"), by wire transfer of
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 Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
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<PAGE>
foregoing, the final distribution on 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 in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. 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 appears 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.
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 Class A-1 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, Class A-1
Certificates are exchangeable for new Class A-1 Certificates 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
-4-
<PAGE>
attorney duly authorized in writing, and thereupon one or more new Class A-1
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
[No transfer of any Class A-1 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, or their
respective affiliates), then the Certificate Registrar shall refuse to register
such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit G-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit G-2 or Exhibit G-3 to the Agreement; or (ii) an Opinion of
Counsel reasonably satisfactory to the Certificate Registrar to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class A-1 Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class A-1 Certificate without
registration or qualification. Any Class A-1 Certificateholder desiring to
effect such a transfer shall, and by the acceptance of its Class A-1 Certificate
agrees to, indemnify the Trustee, the Certificate Registrar and the Depositor
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.]
[Any transferee of this Certificate, if this Certificate is in book-entry
form, shall be deemed to represent to the transferor, the Trustee and the
Depositor that it is a QIB within the meaning of Rule 144A.]
No service charge will be imposed for any registration of transfer or
exchange of Class A-1 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in
-5-
<PAGE>
connection with any transfer or exchange of Class A-1 Certificates.
[Notwithstanding the foregoing, 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.]
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, 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 to occur 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 Depositor, the Master Servicer, the Special Servicer, or the
Majority Subordinate Certificateholder at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer, the
Special Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property remaining
therein. The exercise of such right will effect early retirement of the Class
A-1 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 aggregate Stated Principal Balance of the Mortgage Loans as of
the Closing Date 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 Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee 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
-6-
<PAGE>
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 limited circumstances, including any amendment necessary to maintain the
status of the Trust Fund (or designated portions thereof) 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 applicable to agreements 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.
-7-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December 30, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:
----------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By:
-----------------------------
Authorized Officer
-8-
<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 assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
-1-
<PAGE>
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.
-2-
<PAGE>
EXHIBIT A-2
Form of Class A-2 Certificate
<PAGE>
CLASS A-2 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
FUNB SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting of a pool of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
FIRST UNION
COMMERCIAL MORTGAGE TRUST
Pass-Through Class Principal Balance of
Rate: Variable the Class A-2 Certificates as
of the Closing Date: [$_________ ]
Date of Pooling and Servicing Initial Certificate Principal
Agreement: as of December 1, 1998 Balance of this Class A-2
Certificate as of the Closing
Date: [$_________ ]
Closing Date: December 30, 1998 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
[$_____]
First Distribution Date:
January 15, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota,
National Association
Special Servicer:
Lennar Partners, Inc.
Certificate No. 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 MASTER SERVICER, 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 FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (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 POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
SOLELY 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 INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G
AND CLASS H CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE, THE CLASS A-1 CERTIFICATES MAY BE REDUCED
BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that ______________________ is the registered owner of the
Percentage Interest evidenced
-2-
<PAGE>
by this Class A-2 Certificate (obtained by dividing the principal amount of this
Class A-2 Certificate (its "Certificate Principal Balance") as of the Closing
Date by the aggregate principal amount of all the Class A-2 Certificates (their
"Class Principal Balance") as of the Closing Date) in that certain beneficial
ownership interest evidenced by all the Class A-2 Certificates in the Trust Fund
created pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among First Union Commercial Mortgage Securities, Inc.
(herein called the "Depositor", which term includes any successor entity under
the Agreement), First Union National Bank (in such capacity, herein called the
"Master Servicer", which term includes any successor entity under the
Agreement), Lennar Partners, Inc. (in such capacity, herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Norwest Bank Minnesota, National Association (herein called the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. 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 to the Holders of the
Class A-2 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class A-2
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of 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 Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund
-3-
<PAGE>
Expense previously allocated to this Certificate) will be made in like manner,
but only upon presentation and surrender of this Certificate at the offices of
the Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. 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 appears 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.
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 Class A-2 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, Class A-2
Certificates are exchangeable for new Class A-2 Certificates 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 Class A-2 Certificates in authorized
denominations evidencing
-4-
<PAGE>
the same aggregate Percentage Interest will be issued to the designated
transferee or transferees.
[No transfer of any Class A-2 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, or their
respective affiliates), then the Certificate Registrar shall refuse to register
such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit G-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit G-2 or Exhibit G-3 to the Agreement; or (ii) an Opinion of
Counsel reasonably satisfactory to the Certificate Registrar to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class A-2 Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class A-2 Certificate without
registration or qualification. Any Class A-2 Certificateholder desiring to
effect such a transfer shall, and by the acceptance of its Class A-2 Certificate
agrees to, indemnify the Trustee, the Certificate Registrar and the Depositor
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.]
[Any transferee of this Certificate, if this Certificate is in book-entry
form, shall be deemed to represent to the transferor, the Trustee and the
Depositor that it is a QIB within the meaning of Rule 144A.]
No service charge will be imposed for any registration of transfer or
exchange of Class A-2 Certificates, but 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 Class A-2
Certificates.
-5-
<PAGE>
[Notwithstanding the foregoing, 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.]
The Depositor, the Master Servicer, the Special Servicer, the Trustee, and
the Certificate Registrar and any agent of the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Paying Agent or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes whatsoever and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Paying Agent, 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 to occur 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 Depositor, the Master Servicer, the Special Servicer, or the
Majority Subordinate Certificateholder at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer, the
Special Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property remaining
therein. The exercise of such right will effect early retirement of the Class
A-2 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 aggregate Stated Principal Balance of the Mortgage Loans as of
the Closing Date 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 Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee 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
-6-
<PAGE>
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of the Trust Fund (or designated portions thereof) 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 applicable to agreements 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.
-7-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December 30, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:
-----------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By:
-----------------------------
Authorized Officer
-8-
<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 assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
-1-
<PAGE>
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.
-2-
<PAGE>
EXHIBIT A-3
[Reserved]
<PAGE>
EXHIBIT A-4
Form of Class IO-1 Certificate
<PAGE>
CLASS IO-1 MORTGAGE PASS-THROUGH CERTIFICATE,
FUNB SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting of a pool of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
FIRST UNION
COMMERCIAL MORTGAGE TRUST
Date of Pooling and Servicing Aggregate Certificate Notional
Agreement: as of December 1, 1998 Amount of all Class IO-1
Certificates as of the Closing
Date: [$_____]
Closing Date: December 30, 1998 Certificate Notional Amount
of this Class IO-1
Certificate as of the Closing Date:
[$_____]
First Distribution Date: Aggregate Stated Principal
January 15, 1999 Balance of the Mortgage Loans
as of the Closing Date:
[$_________ ]
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota,
National Association
Special Servicer:
Lennar Partners, Inc.
Certificate No. 1 CUSIP No.
<PAGE>
THIS CERTIFICATE IS NOT ENTITLED TO INTEREST ON THE CERTIFICATE NOTIONAL AMOUNT,
BUT IS ENTITLED TO RECEIVE INTEREST ON ITS COMPONENTS AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, 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 FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
SOLELY 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 INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THE FOLLOWING INFORMATION IS PROVIDED SOLELY
FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT
("OID") RULES TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS
DECEMBER 30, 1998. ASSUMING THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF
PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO THE
CERTIFICATES EQUAL TO A CPR (AS AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM
("PPM"), DATED DECMBER 29, 1998, AS SUPPLEMENTED BY THE PPM SUPPLEMENT AND BASE
PROSPECTUS DATED DECMBER 29, 1998 RELATING TO THIS CERTIFICATE) OF 0% (THE
"PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $[
] OF OID PER $[ ] OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY
IS [ ]% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $[ ] PER $1,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER
RATE.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
-2-
<PAGE>
This certifies that _____________________________________________ is the
registered owner of the Percentage Interest evidenced by this Class IO-1
Certificate in that certain beneficial ownership interest evidenced by all the
Class IO-1 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among First
Union Commercial Mortgage Securities, Inc. (herein called the "Depositor", which
term includes any successor entity under the Agreement), First Union National
Bank (in such capacity, herein called the "Master Servicer", which term includes
any successor entity under the Agreement), Lennar Partners, Inc. (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. 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 to the Holders of the
Class IO-1 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class IO-1
Certificates will be made by Norwest Bank Minnesota, National Association as
paying agent (the "Paying Agent"), by wire transfer of 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 Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate will be made in like manner, but only upon
presentation and surrender of this Certificate at the offices of the Certificate
Registrar or
-3-
<PAGE>
such other location specified in the notice to Holder hereof of such final
distribution.
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 Class IO-1 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, Class
IO-1 Certificates are exchangeable for new Class IO-1 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
[No transfer of any Class IO-1 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, or their
respective affiliates), then the Certificate Registrar shall refuse to register
such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit G-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit G-2 or Exhibit G-3 to the Agreement; or (ii) an Opinion of
Counsel reasonably satisfactory to the Certificate Registrar to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class IO-1 Certificates under the
Securities Act or any other securities law or to take
-4-
<PAGE>
any action not otherwise required under the Agreement to permit the transfer of
any Class IO-1 Certificate without registration or qualification. Any Class IO-1
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class IO-1 Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor 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.]
[Any transferee of this Certificate, if this Certificate is in book-entry
form, shall be deemed to represent to the transferor, the Trustee and the
Depositor that it is a QIB within the meaning of Rule 144A.]
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 Class IO-1 Certificates 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 Class IO-1 Certificates, but 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 Class IO-1
Certificates.
[Notwithstanding the foregoing, 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.]
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, 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
-5-
<PAGE>
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 to occur 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 Depositor, the Master
Servicer, the Special Servicer, or the Majority Subordinate Certificateholder at
a price determined as provided in the Agreement of all Mortgage Loans and each
REO Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Class IO 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 aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date 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 Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee 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 limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) 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.
-6-
<PAGE>
This Certificate 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 Holder hereof shall be
determined in accordance with such laws.
-7-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December 30, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:
-----------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO-1 Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By:
-----------------------------
Authorized Officer
-8-
<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 assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
-1-
<PAGE>
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.
-2-
<PAGE>
EXHIBIT A-5
Form of Class B Certificate
<PAGE>
CLASS B COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
FUNB SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting of a pool of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
FIRST UNION
COMMERCIAL MORTGAGE TRUST
Pass-Through Class Principal Balance of the
Rate: Variable Class B Certificates as of the
Closing Date: [$_________ ]
Date of Pooling and Servicing Initial Certificate Principal
Agreement: as of December 1, 1998 Balance of this Class B Certificate
as of the Closing Date:
[$_________ ]
Closing Date: December 30, 1998 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
[$_____]
First Distribution Date:
January 15, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota,
National Association
Special Servicer:
Lennar Partners, Inc.
Certificate No. 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 MASTER SERVICER, 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 FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES AND THE CLASS IO-1 CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (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 POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN), PROVIDED THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY GENERAL
ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER SECTION
III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE
-2-
<PAGE>
95-60"), AND (ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE
SATISFIED WITH RESPECT TO SUCH TRANSFER. AS A CONDITION TO REGISTRATION OF
TRANSFER OF THIS CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO
REQUIRE ANY PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE, IF IT IS NOT A PLAN OR
PERSON DESCRIBED IN CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A
CERTIFICATION TO THAT EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IF THIS CERTIFICATE IS IN
BOOK-ENTRY FORM, ANY TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE
REPRESENTED TO THE TRUSTEE, THE DEPOSITOR AND THE TRANSFEROR TO THE EFFECT (X)
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSE (A) OR CLAUSE (B) OR (Y) AS
DESCRIBED IN CLAUSE (i) AND CLAUSE (ii).
SOLELY 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 INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES
AND THE CLASS A-2 CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS C, CLASS D, CLASS E, CLASS F, CLASS G AND CLASS H
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that _____________________________________________ is the
registered owner of the Percentage Interest evidenced by this Class B
Certificate (obtained by dividing the principal amount of this Class B
Certificate (its "Certificate Principal Balance") as of the Closing Date by the
aggregate principal amount of all the Class B Certificates (their "Class
Principal Balance") as of the Closing Date) in that certain beneficial ownership
interest evidenced by all the Class B Certificates in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among First Union Commercial Mortgage Securities, Inc. (herein
called the "Depositor", which term includes any successor entity under the
Agreement), First Union National Bank (in such capacity, herein called the
"Master Servicer", which term includes any successor entity under the
Agreement), Lennar Partners, Inc. (in such capacity, herein called the "Special
Servicer", which term
-3-
<PAGE>
includes any successor entity under the Agreement) and Norwest Bank Minnesota,
National Association (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. 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 to the Holders of the
Class B Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class B
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of 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 Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on 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 in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. 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 appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
-4-
<PAGE>
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.
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 Class B 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, Class B
Certificates are exchangeable for new Class B Certificates 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 Class B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
[No transfer of any Class B 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, or their
respective affiliates), then the Certificate Registrar shall refuse to register
such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit G-1 to the
-5-
<PAGE>
Agreement, and a certificate from such Certificateholder's prospective
transferee substantially in the form attached as either Exhibit G-2 or Exhibit
G-3 to the Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to
the Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class B
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class B Certificate without registration or qualification. Any Class B
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class B Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor 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.]
[Any transferee of this Certificate, if this Certificate is in book-entry
form, shall be deemed to represent to the transferor, the Trustee and the
Depositor that it is a QIB within the meaning of Rule 144A.]
No service charge will be imposed for any registration of transfer or
exchange of Class B Certificates, but 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 Class B
Certificates.
[Notwithstanding the foregoing, 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.]
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
-6-
<PAGE>
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 to occur 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 Depositor, the Master Servicer, the Special Servicer, or the
Majority Subordinate Certificateholder at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer, the
Special Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property remaining
therein. The exercise of such right will effect early retirement of the Class B
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 aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date 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 Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee 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 limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) 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.
-7-
<PAGE>
This Certificate 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 Holder hereof shall be
determined in accordance with such laws.
-8-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December 30, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:
-----------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the within-mentioned
Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By:
-----------------------------
Authorized Officer
-9-
<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 assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
-1-
<PAGE>
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.
-2-
<PAGE>
EXHIBIT A-6
Form of Class C Certificate
<PAGE>
CLASS C COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
FUNB SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting of a pool of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
FIRST UNION
COMMERCIAL MORTGAGE TRUST
Pass-Through Class Principal Balance of
Rate: Variable the Class C Certificates as of the
Closing Date: [$_________ ]
Date of Pooling and Servicing Initial Certificate Principal
Agreement: as of December 1, 1998 Balance of this Class C Certificate
as of the Closing Date:
[$_________ ]
Closing Date: December 30, 1998 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
[$_____]
First Distribution Date:
January 15, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota,
National Association
Special Servicer:
Lennar Partners, Inc.
Certificate No. 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 MASTER SERVICER, 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 FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO-1 CERTIFICATES AND THE CLASS B CERTIFICATES OF THE
SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (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 POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN), PROVIDED THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY GENERAL
ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER SECTION
III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE
-2-
<PAGE>
95-60"), AND (ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE
SATISFIED WITH RESPECT TO SUCH TRANSFER. AS A CONDITION TO REGISTRATION OF
TRANSFER OF THIS CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO
REQUIRE ANY PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE, IF IT IS NOT A PLAN OR
PERSON DESCRIBED IN CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A
CERTIFICATION TO THAT EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IF THIS CERTIFICATE IS IN
BOOK-ENTRY FORM, ANY TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE
REPRESENTED TO THE TRUSTEE, THE DEPOSITOR AND THE TRANSFEROR TO THE EFFECT (X)
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSE (A) OR CLAUSE (B) OR (Y) AS
DESCRIBED IN CLAUSE (i) AND CLAUSE (ii).
SOLELY 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 INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, AND THE CLASS B CERTIFICATES OF THE SAME SERIES ARE
REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS D, CLASS E, CLASS F, CLASS G AND
CLASS H CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that _____________________________________________ is the
registered owner of the Percentage Interest evidenced by this Class C
Certificate (obtained by dividing the principal amount of this Class C
Certificate (its "Certificate Principal Balance") as of the Closing Date by the
aggregate principal amount of all the Class C Certificates (their "Class
Principal Balance") as of the Closing Date) in that certain beneficial ownership
interest evidenced by all the Class C Certificates in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among First Union Commercial Mortgage Securities, Inc. (herein
called the "Depositor", which term includes any successor entity under the
Agreement), First Union National Bank (in such capacity, herein called the
"Master Servicer", which term includes any successor entity under the
Agreement), Lennar Partners, Inc. (in such capacity, herein called the "Special
Servicer", which term
-3-
<PAGE>
includes any successor entity under the Agreement) and Norwest Bank Minnesota,
National Association (herein called the "Trustee", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. 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 to the Holders of the
Class C Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class C
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of 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 Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on 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 in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. 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 appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
-4-
<PAGE>
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.
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 Class C 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, Class C
Certificates are exchangeable for new Class C Certificates 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 Class C Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
[No transfer of any Class C 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, or their
respective affiliates), then the Certificate Registrar shall refuse to register
such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit G-1 to the
-5-
<PAGE>
Agreement, and a certificate from such Certificateholder's prospective
transferee substantially in the form attached as either Exhibit G-2 or Exhibit
G-3 to the Agreement; or (ii) an Opinion of Counsel reasonably satisfactory to
the Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class C
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class C Certificate without registration or qualification. Any Class C
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class C Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor 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.]
[Any transferee of this Certificate, if this Certificate is in book-entry
form, shall be deemed to represent to the transferor, the Trustee and the
Depositor that it is a QIB within the meaning of Rule 144A.]
No service charge will be imposed for any registration of transfer or
exchange of Class C Certificates, but 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 Class C
Certificates.
[Notwithstanding the foregoing, 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.]
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
-6-
<PAGE>
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 to occur 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 Depositor, the Master Servicer, the Special Servicer, or the
Majority Subordinate Certificateholder at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer, the
Special Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property remaining
therein. The exercise of such right will effect early retirement of the Class C
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 aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date 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 Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee 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 limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) 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 applicable to agreements 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.
-7-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December 30, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:
-----------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the within-mentioned
Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By:
-----------------------------
Authorized Officer
-8-
<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 assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
-1-
<PAGE>
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.
-2-
<PAGE>
EXHIBIT A-7
Form of Class D Certificate
<PAGE>
CLASS D COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
FUNB SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting of a pool of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
FIRST UNION
COMMERCIAL MORTGAGE TRUST
Pass-Through Class Principal Balance of the
Rate: Variable Class D Certificates as of the
Closing Date: [$_________ ]
Date of Pooling and Servicing Initial Certificate Principal
Agreement: as of December 1, 1998 Balance of this Class D Certificate
as of the Closing Date:
[$_________ ]
Closing Date: December 30, 1998 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
[$_____]
First Distribution Date:
January 15, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota,
National Association
Special Servicer:
Lennar Partners, Inc.
Certificate No. 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 MASTER SERVICER, 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 FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO-1 CERTIFICATES, THE CLASS B CERTIFICATES AND THE
CLASS C CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (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 POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN), PROVIDED THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY GENERAL
ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
-2-
<PAGE>
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO SUCH TRANSFER. AS A CONDITION TO REGISTRATION OF TRANSFER OF THIS
CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE ANY
PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE, IF IT IS NOT A PLAN OR PERSON
DESCRIBED IN CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A CERTIFICATION TO
THAT EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IF THIS CERTIFICATE IS IN BOOK-ENTRY FORM, ANY
TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE REPRESENTED TO THE
TRUSTEE, THE DEPOSITOR AND THE TRANSFEROR TO THE EFFECT (X) THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSE (A) OR CLAUSE (B) OR (Y) AS DESCRIBED IN CLAUSE (i)
AND CLAUSE (ii).
SOLELY 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 INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES AND THE CLASS C
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION
OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN
ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS E, CLASS
F, CLASS G AND CLASS H CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that _____________________________________________ is the
registered owner of the Percentage Interest evidenced by this Class D
Certificate (obtained by dividing the principal amount of this Class D
Certificate (its "Certificate Principal Balance") as of the Closing Date by the
aggregate principal amount of all the Class D Certificates (their "Class
Principal Balance") as of the Closing Date) in that certain beneficial ownership
interest evidenced by all the Class D Certificates in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among First Union Commercial Mortgage Securities, Inc. (herein
called the "Depositor", which term includes any successor entity under the
Agreement), First Union National Bank (in such capacity, herein called the
"Master Servicer", which term includes any successor entity under the
Agreement), Lennar Partners, Inc. (in
-3-
<PAGE>
such capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. 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 to the Holders of the
Class D Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class D
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of 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 Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on 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 in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. 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
-4-
<PAGE>
appears 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.
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 Class D 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, Class D
Certificates are exchangeable for new Class D Certificates 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 Class D Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
[No transfer of any Class D 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, or their
respective affiliates), then the Certificate Registrar shall refuse to
-5-
<PAGE>
register such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit G-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit G-2 or Exhibit G-3 to the Agreement; or (ii) an Opinion of
Counsel reasonably satisfactory to the Certificate Registrar to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class D Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class D Certificate without
registration or qualification. Any Class D Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class D Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor 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.]
[Any transferee of this Certificate, if this Certificate is in book-entry
form, shall be deemed to represent to the transferor, the Trustee and the
Depositor that it is a QIB within the meaning of Rule 144A.]
No service charge will be imposed for any registration of transfer or
exchange of Class D Certificates, but 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 Class D
Certificates.
[Notwithstanding the foregoing, 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.]
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the
-6-
<PAGE>
Special Servicer, the Trustee, the Paying Agent, 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 to occur 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 Depositor, the Master Servicer, the Special Servicer, or the
Majority Subordinate Certificateholder at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer, the
Special Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property remaining
therein. The exercise of such right will effect early retirement of the Class D
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 aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date 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 Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee 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 limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) 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.
-7-
<PAGE>
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 applicable to agreements 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.
-8-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December 30, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:
-----------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the within-mentioned
Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By:
-----------------------------
Authorized Officer
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
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(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 assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
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Dated:
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Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
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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.
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EXHIBIT A-8
Form of Class E Certificate
<PAGE>
CLASS E COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
FUNB SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting of a pool of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
FIRST UNION
COMMERCIAL MORTGAGE TRUST
Pass-Through Class Principal Balance of the
Rate: Variable Class E Certificates as of the
Closing Date: [$_________ ]
Date of Pooling and Servicing Initial Certificate Principal
Agreement: as of December 1, 1998 Balance of this Class E Certificate
as of the Closing Date:
[$_________ ]
Closing Date: December 30, 1998 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
[$_____]
First Distribution Date:
January 15, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota,
National Association
Special Servicer:
Lennar Partners, Inc.
Certificate No. 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 MASTER SERVICER, 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 FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO-1 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES AND THE CLASS D CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (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 POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN), PROVIDED THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY GENERAL
ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
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SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO SUCH TRANSFER. AS A CONDITION TO REGISTRATION OF TRANSFER OF THIS
CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE ANY
PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE, IF IT IS NOT A PLAN OR PERSON
DESCRIBED IN CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A CERTIFICATION TO
THAT EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IF THIS CERTIFICATE IS IN BOOK-ENTRY FORM, ANY
TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE REPRESENTED TO THE
TRUSTEE, THE DEPOSITOR AND THE TRANSFEROR TO THE EFFECT (X) THAT IT IS NOT A
PERSON DESCRIBED IN CLAUSE (A) OR CLAUSE (B) OR (Y) AS DESCRIBED IN CLAUSE (i)
AND CLAUSE (ii).
SOLELY 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 INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES
AND THE CLASS D CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS F, CLASS G AND CLASS H CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that _____________________________________________ is the
registered owner of the Percentage Interest evidenced by this Class E
Certificate (obtained by dividing the principal amount of this Class E
Certificate (its "Certificate Principal Balance") as of the Closing Date by the
aggregate principal amount of all the Class E Certificates (their "Class
Principal Balance") as of the Closing Date) in that certain beneficial ownership
interest evidenced by all the Class E Certificates in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among First Union Commercial Mortgage Securities, Inc. (herein
called the "Depositor", which term includes any successor entity under the
Agreement), First Union National Bank (in such capacity, herein called the
"Master Servicer", which term includes any
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successor entity under the Agreement), Lennar Partners, Inc. (in such capacity,
herein called the "Special Servicer", which term includes any successor entity
under the Agreement) and Norwest Bank Minnesota, National Association (herein
called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. 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 to the Holders of the
Class E Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class E
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of 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 Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on 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 in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. 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
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appears 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.
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 Class E 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, Class E
Certificates are exchangeable for new Class E Certificates 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 Class E Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
[No transfer of any Class E 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, or their
respective affiliates), then the Certificate Registrar shall refuse to
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register such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit G-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit G-2 or Exhibit G-3 to the Agreement; or (ii) an Opinion of
Counsel reasonably satisfactory to the Certificate Registrar to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class E Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class E Certificate without
registration or qualification. Any Class E Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class E Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor 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.]
[Any transferee of this Certificate, if this Certificate is in book-entry
form, shall be deemed to represent to the transferor, the Trustee and the
Depositor that it is a QIB within the meaning of Rule 144A.]
No service charge will be imposed for any registration of transfer or
exchange of Class E Certificates, but 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 Class E
Certificates.
[Notwithstanding the foregoing, 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.]
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the
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Special Servicer, the Trustee, the Paying Agent, 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 to occur 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 Depositor, the Master Servicer, the Special Servicer, or the
Majority Subordinate Certificateholder at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer, the
Special Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property remaining
therein. The exercise of such right will effect early retirement of the Class E
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 aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date 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 Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee 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 limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) 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.
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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 applicable to agreements 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.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December 30, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:
-----------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the within-mentioned
Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By:
-----------------------------
Authorized Officer
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
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- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(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 assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
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- --------------------------------------------------------------------------------
Dated:
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Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
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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.
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EXHIBIT A-9
Form of Class IO-2 Certificate
<PAGE>
CLASS IO-2 MORTGAGE PASS-THROUGH CERTIFICATE,
FUNB SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting of a pool of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
FIRST UNION
COMMERCIAL MORTGAGE TRUST
Date of Pooling and Servicing Aggregate Certificate Notional
Agreement: as of December 1, 1998 Amount of all Class IO-2
Certificates as of the Closing
Date: [$_____]
Closing Date: December 30, 1998 Certificate Notional Amount of this
Class IO Certificate as of the
Closing Date: [$_____]
First Distribution Date: Aggregate Stated Principal Balance
January 15, 1999 of the Mortgage Loans as of the
Closing Date: [$_________ ]
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota,
National Association
Special Servicer:
Lennar Partners, Inc.
Certificate No. 1 CUSIP No.
<PAGE>
THIS CERTIFICATE IS NOT ENTITLED TO INTEREST ON THE CERTIFICATE NOTIONAL AMOUNT,
BUT IS ENTITLED TO RECEIVE INTEREST ON ITS COMPONENTS AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO-1 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES AND THE CLASS E CERTIFICATES OF THE SAME
SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (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 POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN), PROVIDED THAT (A) SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY
GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO SUCH TRANSFER AND (B) SUCH A TRANSFER MAY BE MADE IF THE PROSPECTIVE
TRANSFEREE PROVIDES THE CERTIFICATE REGISTRAR WITH A CERTIFICATION OF FACTS AND
AN OPINION OF COUNSEL THAT ESTABLISH TO THE REASONABLE
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SATISFACTION OF THE CERTIFICATE REGISTRAR THAT SUCH TRANSFER WILL NOT RESULT IN
A VIOLATION OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR RESULT IN THE
IMPOSITION OF AN EXCISE TAX UNDER SECTION 4975 OF THE CODE. AS A CONDITION TO
REGISTRATION OF TRANSFER OF THIS CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL
HAVE THE RIGHT TO REQUIRE ANY PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE, IF IT
IS NOT A PLAN OR PERSON DESCRIBED IN CLAUSE (B) OF THE PRECEDING SENTENCE, TO
EXECUTE A CERTIFICATION TO THAT EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY 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 INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THE FOLLOWING INFORMATION IS PROVIDED SOLELY
FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT
("OID") RULES TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS
DECEMBER 30, 1998. ASSUMING THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF
PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO THE
CERTIFICATES EQUAL TO A CPR (AS AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM
("PPM"), DATED DECMBER 29, 1998, AS SUPPLEMENTED BY THE PPM SUPPLEMENT AND BASE
PROSPECTUS DATED DECMBER 29, 1998 RELATING TO THIS CERTIFICATE) OF 0% (THE
"PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN
$[ ] OF OID PER $[ ] OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO
MATURITY IS [ ]% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL
ACCRUAL PERIOD IS NO MORE THAN $[ ] PER $1,000 OF INITIAL CERTIFICATE NOTIONAL
AMOUNT, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT
ANY OTHER RATE.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
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This certifies that _____________________________________________ is the
registered owner of the Percentage Interest evidenced by this Class IO-2
Certificate in that certain beneficial ownership interest evidenced by all the
Class IO-2 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among First
Union Commercial Mortgage Securities, Inc. (herein called the "Depositor", which
term includes any successor entity under the Agreement), First Union National
Bank (in such capacity, herein called the "Master Servicer", which term includes
any successor entity under the Agreement), Lennar Partners, Inc. (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. 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 to the Holders of the
Class IO-2 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class IO-2
Certificates will be made by Norwest Bank Minnesota, National Association as
paying agent (the "Paying Agent"), by wire transfer of 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 Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate will be made in like manner, but only upon
presentation and surrender of this Certificate at the offices of the Certificate
Registrar or
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<PAGE>
such other location specified in the notice to Holder hereof of such final
distribution.
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 Class IO-2 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, Class
IO-2 Certificates are exchangeable for new Class IO-2 Certificates 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 Class IO-2 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
[No transfer of any Class IO-2 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, or their
respective affiliates), then the Certificate Registrar shall refuse to register
such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit G-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit G-2 or Exhibit G-3 to the Agreement; or (ii) an Opinion of
Counsel reasonably satisfactory to the Certificate
-5-
<PAGE>
Registrar to the effect that such transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer,
the Trustee or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such transfer from the Certificateholder desiring to effect such transfer and/or
such Certificateholder's prospective transferee on which such Opinion of Counsel
is based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class IO-2 Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class IO-2
Certificate without registration or qualification. Any Class IO-2
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class IO-2 Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor 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.]
[Any transferee of this Certificate, if this Certificate is in book-entry
form, shall be deemed to represent to the transferor, the Trustee and the
Depositor that it is a QIB within the meaning of Rule 144A.]
No service charge will be imposed for any registration of transfer or
exchange of Class IO-2 Certificates, but 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 Class IO-2
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, 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 to occur 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
-6-
<PAGE>
Depositor, the Master Servicer, the Special Servicer, or the Majority
Subordinate Certificateholder at a price determined as provided in the Agreement
of all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property remaining
therein. The exercise of such right will effect early retirement of the Class
IO-2 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 aggregate Stated Principal Balance of the Mortgage Loans as of
the Closing Date 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 Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee 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 limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) 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 applicable to agreements 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.
-7-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December 30, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:
-----------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO-2 Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By
------------------------------
Authorized Officer
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
-1-
<PAGE>
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.
-2-
<PAGE>
EXHIBIT A-10
Form of Class F Certificate
<PAGE>
CLASS F COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
FUNB SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting of a pool of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
FIRST UNION
COMMERCIAL MORTGAGE TRUST
Pass-Through Class Principal Balance of the
Rate: 5.35% Class F Certificates as of the
Closing Date: [$_________ ]
Date of Pooling and Servicing Initial Certificate Principal
Agreement: as of December 1, 1998 Balance of this Class F Certificate
as of the Closing Date: [$_______ ]
Closing Date: December 30, 1998 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
[$_____]
First Distribution Date:
January 15, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota,
National Association
Special Servicer:
Lennar Partners, Inc.
Certificate No. 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 MASTER SERVICER, 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 FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO-1 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES AND THE CLASS
IO-2 CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (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 POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN), PROVIDED THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY GENERAL
ACCOUNT IF
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<PAGE>
(i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER SECTION III OF
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND (ii) THE
CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH RESPECT TO
SUCH TRANSFER. AS A CONDITION TO REGISTRATION OF TRANSFER OF THIS CERTIFICATE,
THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE ANY PROSPECTIVE
TRANSFEREE OF THIS CERTIFICATE, IF IT IS NOT A PLAN OR PERSON DESCRIBED IN
CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A CERTIFICATION TO THAT EFFECT
SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN. IF THIS CERTIFICATE IS IN BOOK-ENTRY FORM, ANY TRANSFEREE OF
THIS CERTIFICATE SHALL BE DEEMED TO HAVE REPRESENTED TO THE TRUSTEE, THE
DEPOSITOR AND THE TRANSFEROR TO THE EFFECT (X) THAT IT IS NOT A PERSON DESCRIBED
IN CLAUSE (A) OR CLAUSE (B) OR (Y) AS DESCRIBED IN CLAUSE (i) AND CLAUSE (ii).
SOLELY 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 INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
SOLELY 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 INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THE FOLLOWING INFORMATION IS PROVIDED SOLELY
FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT
("OID") RULES TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS
DECEMBER 30, 1998. ASSUMING THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF
PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO THE
CERTIFICATES EQUAL TO A CPR (AS AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM
("PPM"), DATED DECMBER 29, 1998, AS SUPPLEMENTED BY THE PPM SUPPLEMENT AND BASE
PROSPECTUS DATED DECMBER 29, 1998 RELATING TO THIS CERTIFICATE) OF 0% (THE
"PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $[
] OF OID PER $[ ] OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY
IS [ ]% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $[ ] PER $1,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER
RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES,
THE CLASS D CERTIFICATES AND THE CLASS E CERTIFICATES OF THE SAME SERIES ARE
REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN
-3-
<PAGE>
ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS G AND
CLASS H CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that _____________ is the registered owner of the Percentage
Interest evidenced by this Class F Certificate (obtained by dividing the
principal amount of this Class F Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class F Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class F
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), Lennar Partners, Inc. (in such capacity,
herein called the "Special Servicer", which term includes any successor entity
under the Agreement) and Norwest Bank Minnesota, National Association (herein
called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. 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 to the Holders of the
Class F Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class F
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of
-4-
<PAGE>
the Person entitled thereto at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided the Paying
Agent with wiring instructions no less than five Business Days prior to the
related Record Date (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions), or otherwise by check mailed
to the address of such Certificateholder as it appears in the Certificate
Register. Notwithstanding the foregoing, the final distribution on 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 in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution. 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 appears 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.
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 Class F 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, Class F
Certificates are exchangeable for new Class F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
-5-
<PAGE>
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 Class F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
[No transfer of any Class F 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, Morgan
Stanley Dean Witter ("Morgan Stanley", or, the "Initial Purchaser") or their
respective affiliates), then the Certificate Registrar shall refuse to register
such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit G-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit G-2 or Exhibit G-3 to the Agreement; or (ii) an Opinion of
Counsel reasonably satisfactory to the Certificate Registrar to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class F Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class F Certificate without
registration or qualification. Any Class F Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class F Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor 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.]
-6-
<PAGE>
[Any transferee of this Certificate, if this Certificate is in book-entry
form, shall be deemed to represent to the transferor, the Trustee and the
Depositor that it is a QIB within the meaning of Rule 144A.]
No service charge will be imposed for any registration of transfer or
exchange of Class F Certificates, but 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 Class F
Certificates.
Notwithstanding the foregoing, 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.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, 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 to occur 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 Depositor, the Master Servicer, the Special Servicer, or the
Majority Subordinate Certificateholder at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer, the
Special Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property remaining
therein. The exercise of such right will effect early retirement of the Class F
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 aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
-7-
<PAGE>
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee 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 limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) 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 applicable to agreements 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.
-8-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December 30, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:
-----------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the within-mentioned
Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By:
-----------------------------
Authorized Officer
-9-
<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 assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
-1-
<PAGE>
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.
-2-
<PAGE>
EXHIBIT A-11
Form of Class G Certificate
<PAGE>
CLASS G COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
FUNB SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting of a pool of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
FIRST UNION
COMMERCIAL MORTGAGE TRUST
Pass-Through Class Principal Balance of the Class G
Rate: 5.35% Certificates as of the Closing Date:
$37,877,000
Date of Pooling and Servicing Initial Certificate Principal Balance of
Agreement: as of December 1, 1998 this Class G Certificate as of the
Closing Date: [$_________ ]
Closing Date: December 30, 1998 Aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing
Date: [$_____]
First Distribution Date:
January 15, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota,
National Association
Special Servicer:
Lennar Partners, Inc.
Certificate No. 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 MASTER SERVICER, 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 FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO-1 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS IO-2
CERTIFICATES AND THE CLASS F CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (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 POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN), PROVIDED THAT SUCH
-2-
<PAGE>
A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY GENERAL ACCOUNT IF (i) THIS
CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER SECTION III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND (ii) THE CONDITIONS OF
SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH RESPECT TO SUCH TRANSFER.
AS A CONDITION TO REGISTRATION OF TRANSFER OF THIS CERTIFICATE, THE CERTIFICATE
REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE ANY PROSPECTIVE TRANSFEREE OF THIS
CERTIFICATE, IF IT IS NOT A PLAN OR PERSON DESCRIBED IN CLAUSE (B) OF THE
PRECEDING SENTENCE, TO EXECUTE A CERTIFICATION TO THAT EFFECT SUBSTANTIALLY IN
THE FORM OF EXHIBIT H TO THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
IF THIS CERTIFICATE IS IN BOOK-ENTRY FORM, ANY TRANSFEREE OF THIS CERTIFICATE
SHALL BE DEEMED TO HAVE REPRESENTED TO THE TRUSTEE, THE DEPOSITOR AND THE
TRANSFEROR TO THE EFFECT (X) THAT IT IS NOT A PERSON DESCRIBED IN CLAUSE (A) OR
CLAUSE (B) OR (Y) AS DESCRIBED IN CLAUSE (i) AND CLAUSE (ii).
SOLELY 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 INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THE FOLLOWING INFORMATION IS PROVIDED SOLELY
FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT
("OID") RULES TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS
DECEMBER 30, 1998. ASSUMING THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF
PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO THE
CERTIFICATES EQUAL TO A CPR (AS AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM
("PPM"), DATED DECMBER 29, 1998, AS SUPPLEMENTED BY THE PPM SUPPLEMENT AND BASE
PROSPECTUS DATED DECMBER 29, 1998 RELATING TO THIS CERTIFICATE) OF 0% (THE
"PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $[
] OF OID PER $[ ] OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY
IS [ ]% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $[ ] PER $1,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER
RATE.
SOLELY 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 INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES,
THE CLASS D CERTIFICATES, AND THE CLASS E CERTIFICATES AND THE CLASS F
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION
OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE
-3-
<PAGE>
MONTHLY AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
IN ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS H
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that ____________ is the registered owner of the Percentage
Interest evidenced by this Class G Certificate (obtained by dividing the
principal amount of this Class G Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class G Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class G
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), Lennar Partners, Inc. (in such capacity,
herein called the "Special Servicer", which term includes any successor entity
under the Agreement) and Norwest Bank Minnesota, National Association (herein
called the "Trustee", which term includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. 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 to the Holders of the
Class G Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class G
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by
-4-
<PAGE>
wire transfer of 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 Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on 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 in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution. 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 appears 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.
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 Class G 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, Class G
Certificates are exchangeable for new Class G Certificates in
-5-
<PAGE>
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 Class G Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
[No transfer of any Class G 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, Morgan
Stanley Dean Witter ("Morgan Stanley", or, the "Initial Purchaser") or their
respective affiliates), then the Certificate Registrar shall refuse to register
such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit G-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit G-2 or Exhibit G-3 to the Agreement; or (ii) an Opinion of
Counsel reasonably satisfactory to the Certificate Registrar to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class G Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class G Certificate without
registration or qualification. Any Class G Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class G Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result
-6-
<PAGE>
if the transfer is not so exempt or is not made in accordance with such federal
and state laws.]
[Any transferee of this Certificate, if this Certificate is in book-entry
form, shall be deemed to represent to the transferor, the Trustee and the
Depositor that it is a QIB within the meaning of Rule 144A.]
No service charge will be imposed for any registration of transfer or
exchange of Class G Certificates, but 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 Class G
Certificates.
Notwithstanding the foregoing, 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.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, 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 to occur 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 Depositor, the Master Servicer, the Special Servicer, or the
Majority Subordinate Certificateholder at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer, the
Special Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property remaining
therein. The exercise of such right will effect early retirement of the Class G
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 aggregate Stated Principal Balance of
-7-
<PAGE>
the Mortgage Loans as of the Closing Date 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 Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee 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 limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) 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 applicable to agreements 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.
-8-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December 30, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:
-----------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the within-mentioned
Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By:
-----------------------------
Authorized Officer
-9-
<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 assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
-1-
<PAGE>
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.
-2-
<PAGE>
EXHIBIT A-12
Form of Class H Certificate
<PAGE>
CLASS H COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
FUNB SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting of a pool of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
FIRST UNION
COMMERCIAL MORTGAGE TRUST
Pass-Through Class Principal Balance of the Class H
Rate: 5.35% Certificates as of the Closing Date:
[$_________ ]
Date of Pooling and Servicing Initial Certificate Principal Balance of
Agreement: as of December 1, 1998 this Class H Certificate as of the
Closing Date: [$_________ ]
Closing Date: December 30, 1998 Aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing
Date: [$_____]
First Distribution Date: January 15, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota,
National Association
Special Servicer:
Lennar Partners, Inc.
Certificate No. 1 CUSIP No.
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, LENNAR PARTNERS, INC. OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO-1 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS IO-2
CERTIFICATES, THE CLASS F CERTIFICATES AND THE CLASS G CERTIFICATES OF THE SAME
SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (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 POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN), PROVIDED THAT (A) SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY
GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND
(ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO SUCH TRANSFER AND (B) SUCH A TRANSFER MAY BE MADE IF THE PROSPECTIVE
TRANSFEREE PROVIDES THE CERTIFICATE REGISTRAR WITH A CERTIFICATION OF FACTS AND
AN OPINION OF COUNSEL THAT ESTABLISH TO THE REASONABLE SATISFACTION OF THE
CERTIFICATE REGISTRAR THAT SUCH TRANSFER WILL NOT RESULT IN A VIOLATION OF
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR RESULT IN THE IMPOSITION OF
AN EXCISE TAX UNDER SECTION 4975 OF THE CODE. AS A CONDITION TO REGISTRATION OF
TRANSFER OF THIS CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL
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<PAGE>
HAVE THE RIGHT TO REQUIRE ANY PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE, IF IT
IS NOT A PLAN OR PERSON DESCRIBED IN CLAUSE (B) OF THE PRECEDING SENTENCE, TO
EXECUTE A CERTIFICATION TO THAT EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY 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 INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
SOLELY 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 INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). THE FOLLOWING INFORMATION IS PROVIDED SOLELY
FOR THE PURPOSES OF APPLYING THE U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT
("OID") RULES TO THIS CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS
DECEMBER 30, 1998. ASSUMING THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF
PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO THE
CERTIFICATES EQUAL TO A CPR (AS AS DEFINED IN THE PRIVATE PLACEMENT MEMORANDUM
("PPM"), DATED DECMBER 29, 1998, AS SUPPLEMENTED BY THE PPM SUPPLEMENT AND BASE
PROSPECTUS DATED DECMBER 29, 1998 RELATING TO THIS CERTIFICATE) OF 0% (THE
"PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $[
] OF OID PER $[ ] OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY
IS [ ]% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $[ ] PER $1,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER
RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES,
THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES AND
THE CLASS G CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that ___________________ is the registered owner of the
Percentage Interest evidenced by this
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<PAGE>
Class H Certificate (obtained by dividing the principal amount of this Class H
Certificate (its "Certificate Principal Balance") as of the Closing Date by the
aggregate principal amount of all the Class H Certificates (their "Class
Principal Balance") as of the Closing Date) in that certain beneficial ownership
interest evidenced by all the Class H Certificates in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among First Union Commercial Mortgage Securities, Inc. (herein
called the "Depositor", which term includes any successor entity under the
Agreement), First Union National Bank (in such capacity, herein called the
"Master Servicer", which term includes any successor entity under the
Agreement), Lennar Partners, Inc. (in such capacity, herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Norwest Bank Minnesota, National Association (herein called the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. 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 to the Holders of the
Class H Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class H
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of 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 Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on 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 in like manner, but
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<PAGE>
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. 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 appears 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.
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 Class H 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, Class H
Certificates are exchangeable for new Class H Certificates 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 Class H Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
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<PAGE>
[No transfer of any Class H 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 such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, Morgan
Stanley Dean Witter ("Morgan Stanley", or, the "Initial Purchaser") or their
respective affiliates), then the Certificate Registrar shall refuse to register
such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit G-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit G-2 or Exhibit G-3 to the Agreement; or (ii) an Opinion of
Counsel reasonably satisfactory to the Certificate Registrar to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class H Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class H Certificate without
registration or qualification. Any Class H Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class H Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor 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.]
No service charge will be imposed for any registration of transfer or
exchange of Class H Certificates, but 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 Class H
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the
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<PAGE>
Special Servicer, the Trustee, the Paying Agent, 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 to occur 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 Depositor, the Master Servicer, the Special Servicer, or the
Majority Subordinate Certificateholder at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer, the
Special Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property remaining
therein. The exercise of such right will effect early retirement of the Class H
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 aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date 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 Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee 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 limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) 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.
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<PAGE>
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 applicable to agreements 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.
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<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December 30, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:
-----------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the within-mentioned
Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By:
-----------------------------
Authorized Officer
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
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<PAGE>
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.
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<PAGE>
EXHIBIT A-13
Form of Class R-I Certificate
<PAGE>
CLASS R-I MORTGAGE PASS-THROUGH CERTIFICATE,
FUNB SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting of a pool of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
FIRST UNION COMMERCIAL MORTGAGE SECURITIES, INC.
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: as of December 1, 1998 Class R-I Certificate: 100%
Closing Date: December 30, 1998 Aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing
Date: $1,165,454,045.66
First Distribution Date:
January 15, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota,
National Association
Special Servicer:
Lennar Partners, Inc.
Certificate No. 1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS IO-1, CLASS
B, CLASS C, CLASS D, CLASS E, CLASS IO-2, CLASS F, CLASS G AND CLASS H
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 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 POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN). AS A CONDITION TO REGISTRATION OF TRANSFER OF THIS CERTIFICATE, THE
CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE ANY PROSPECTIVE TRANSFEREE
OF THIS CERTIFICATE, IF IT IS NOT A PLAN OR PERSON DESCRIBED IN CLAUSE (B) OF
THE PRECEDING SENTENCE, TO EXECUTE A CERTIFICATION TO THAT EFFECT SUBSTANTIALLY
IN THE FORM OF EXHIBIT H TO THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
SOLELY 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, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE
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<PAGE>
DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING
AND SERVICING 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 Class R-I
Certificate (as specified above) in that certain beneficial ownership interest
evidenced by all the Class R-I Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among First Union Commercial Mortgage Securities, Inc. (herein
called the "Depositor", which term includes any successor entity under the
Agreement), First Union National Bank (in such capacity, herein called the
"Master Servicer", which term includes any successor entity under the
Agreement), Lennar Partners, Inc. in such capacity, herein called the "Special
Servicer", which term includes any successor entity under the Agreement), and
Norwest Bank Minnesota, National Association (herein called the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. 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, if any, required to be distributed to the Holders of
the Class R-I Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class R-I
Certificate will be made by check mailed to the address of the Person entitled
thereto, as such name and address appear in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
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<PAGE>
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 Class R-I Certificates are issuable in fully registered form only
without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-I Certificates are exchangeable for new
Class R-I Certificates 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 Class R-I Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
[No transfer of any Class R-I 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 of any R-I Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor, or its affiliates), then the Certificate Registrar shall refuse to
register such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit G-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit G-2 or Exhibit G-3 to the Agreement; or (ii) an Opinion of
Counsel satisfactory to the Certificate Registrar to the effect that such
transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be
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<PAGE>
an expense of the Trust Fund or of the Depositor, the Master Servicer, the
Special Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class R-I
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class R-I Certificate without registration or qualification. Any Class R-I
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-I Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor 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.]
[No transfer of this Class R-I Certificate or any interest therein shall be
made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class R-I Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of transfer of
this Class R-I Certificate, the Certificate Registrar shall have the right to
require the prospective transferee of such Certificate, if it is not a Plan or
Person described in clause (B) of the preceding sentence, to execute a
certification to that effect substantially in the form of Exhibit H to the
Agreement.]
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 Norwest Bank Minnesota, National Association, as paying
agent (the "Paying Agent"), 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 Certificate Registrar under clause (ii)(B) of such Section
5.02(d) to negotiate the terms of any mandatory sale and to execute all
instruments of Transfer and to do all other things necessary in connection with
any such sale. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Paying Agent and the Certificate Registrar of any change or
impending change in its status as a Permitted Transferee. In connection with any
proposed Transfer of any
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<PAGE>
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 I-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 a Responsible Officer of the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in this Certificate to such
proposed Transferee shall be effected.
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 unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit I-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Master Servicer and the
Trustee written notice that it is a "pass-through interest holder" within the
meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring such Ownership Interest, if it is, or is holding such Ownership
Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to downgrade its then-current ratings of any Class of Certificates; and (b) an
Opinion of Counsel, in form and substance satisfactory to the Certificate
Registrar and the Master Servicer, to the effect that such modification of,
addition to or elimination of such provisions will not cause the Trust Fund to
(x) cease to qualify as a REMIC or (y) be subject to an entity-level tax caused
by the transfer of this Class R-I Certificate to a Person which is not a
Permitted Transferee, or
-6-
<PAGE>
cause a Person other than the prospective Transferee to be subject to a
REMIC-related tax caused by the transfer of this Class R-I Certificate to a
Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization" or a "Non-United States Person". A "Disqualified Organization" is
any of (i) the United States, any State or political subdivision thereof, any
possession of the United States, or any agency or instrumentality of any of the
foregoing (other than an instrumentality which is a corporation if all of its
activities are subject to tax and, except for the FHLMC, a majority of its board
of directors is not selected by such governmental unit), (ii) a foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter I of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381 of the Code and (v) any other
Person so designated by the Trustee based upon an Opinion of Counsel provided to
it that the holding of an Ownership Interest in a Class R-I 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 Class R-I 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 or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States or any political subdivision thereof, an estate
whose income from sources without the United States is income for United States
federal income tax purposes regardless of its connection of a trade or business
within the United States, 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 Class R-I Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in
-7-
<PAGE>
connection with any transfer or exchange of Class R-I Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent, 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 to occur 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 Depositor, the Master Servicer, the Special Servicer, or the
Majority Subordinate Certificateholder at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer the
Special Servicer, or the Majority Subordinate Certificateholder or the Depositor
to purchase from the Trust Fund all Mortgage Loans and each REO Property
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 aggregate Stated Principal Balance of the Mortgage Loans as of
the Closing Date 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 Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee 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 limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated
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<PAGE>
portions thereof) 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 applicable to agreements 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.
-9-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December 30, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:
-------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By:
-------------------------------------
Authorized Officer
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<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
-1-
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall be made by check paybable to _______________________
________________________________________________________________________________
and mailed to___________________________________________________________________
Applicable statements and notices should be mailed to_____________________
_______________________________________________________________________________.
This information is provided by ______________________, the Assignee named
above, or ______________, as its agent.
-2-
<PAGE>
EXHIBIT A-14
Form of Class R-II Certificate
<PAGE>
CLASS R-II MORTGAGE PASS-THROUGH CERTIFICATE,
FUNB SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting of a pool of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
FIRST UNION
COMMERCIAL MORTGAGE TRUST
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: as of December 1, 1998 Class R-II Certificate: 100%
Closing Date: December 30, 1998 Aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing
Date: $1,165,454,045.66
First Distribution Date:
January 15, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota,
National Association
Special Servicer:
Lennar Partners, Inc.
Certificate No. 1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS IO-1, CLASS
B, CLASS C, CLASS D, CLASS E, CLASS IO-2, CLASS F, CLASS G AND CLASS H
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 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 POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN). AS A CONDITION TO REGISTRATION OF TRANSFER OF THIS CERTIFICATE, THE
CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE ANY PROSPECTIVE TRANSFEREE
OF THIS CERTIFICATE, IF IT IS NOT A PLAN OR PERSON DESCRIBED IN CLAUSE (B) OF
THE PRECEDING SENTENCE, TO EXECUTE A CERTIFICATION TO THAT EFFECT SUBSTANTIALLY
IN THE FORM OF EXHIBIT H TO THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
SOLELY 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, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE
-2-
<PAGE>
DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING
AND SERVICING 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 Class R-II
Certificate (as specified above) in that certain beneficial ownership interest
evidenced by all the Class R-II Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among First Union Commercial Mortgage Securities, Inc. (herein
called the "Depositor", which term includes any successor entity under the
Agreement), First Union National Bank (in such capacity, herein called the
"Master Servicer", which term includes any successor entity under the
Agreement), Lennar Partners, Inc. in such capacity, herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Norwest Bank Minnesota, National Association (herein called the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. 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, if any, required to be distributed to the Holders of
the Class R-II Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class R-II
Certificate will be made by check mailed to the address of the Person entitled
thereto, as such name and address appear in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
-3-
<PAGE>
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 Class R-II Certificates are issuable in fully registered form only
without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-II Certificates are exchangeable for new
Class R-II Certificates 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 Class R-II Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
[No transfer of any Class R-II 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 of any R-II Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor, or its affiliates), then the Certificate Registrar shall refuse to
register such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit G-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit G-2 or Exhibit G-3 to the Agreement; or (ii) an Opinion of
Counsel satisfactory to the Certificate Registrar to the effect that such
transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be
-4-
<PAGE>
an expense of the Trust Fund or of the Depositor, the Master Servicer, the
Special Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class R-II
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class R-II Certificate without registration or qualification. Any Class R-II
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-II Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor 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.]
No transfer of this Class R-II Certificate or any interest therein shall be
made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class R-II Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of transfer of
this Class R-II Certificate, the Certificate Registrar shall have the right to
require the prospective transferee of such Certificate, if it is not a Plan or
Person described in clause (B) of the preceding sentence, to execute a
certification to that effect substantially in the form of Exhibit H to the
Agreement.
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 Norwest Bank Minnesota, National Organization, as paying
agent (the "Paying Agent"), 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 Certificate Registrar under clause (ii)(B) of such Section
5.02(d) to negotiate the terms of any mandatory sale and to execute all
instruments of Transfer and to do all other things necessary in connection with
any such sale. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Paying Agent and the Certificate Registrar of any change or
impending change in its status as a Permitted Transferee. In connection with any
proposed Transfer of any
-5-
<PAGE>
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 I-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 a Responsible Officer of the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in this Certificate to such
proposed Transferee shall be effected.
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 unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit I-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Master Servicer and the
Trustee written notice that it is a "pass-through interest holder" within the
meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring such Ownership Interest, if it is, or is holding such Ownership
Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to downgrade its then-current ratings of any Class of Certificates; and (b) an
Opinion of Counsel, in form and substance satisfactory to the Certificate
Registrar and the Master Servicer, to the effect that such modification of,
addition to or elimination of such provisions will not cause the Trust Fund to
(x) cease to qualify as a REMIC or (y) be subject to an entity-level tax caused
by the Transfer of any Class R-II Certificate to a Person which is not a
Permitted Transferee, or
-6-
<PAGE>
cause a Person other than the prospective Transferee to be subject to a
REMIC-related tax caused by the transfer of this Class R-II Certificate to a
Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization" or a "Non-United States Person". A "Disqualified Organization" is
any of (i) the United States, any State or political subdivision thereof, any
possession of the United States, or any agency or instrumentality of any of the
foregoing (other than an instrumentality which is a corporation if all of its
activities are subject to tax and, except for the FHLMC, a majority of its board
of directors is not selected by such governmental unit), (ii) a foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter I of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381 of the Code and (v) any other
Person so designated by the Trustee based upon an Opinion of Counsel provided to
it that the holding of an Ownership Interest in a Class R-II 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 Class R-II 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 or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States or any political subdivision thereof, an estate
whose income from sources without the United States is income for United States
federal income tax purposes regardless of its connection of a trade or business
within the United States, 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 Class R-II Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in
-7-
<PAGE>
connection with any transfer or exchange of Class R-II Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent, 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 to occur 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 Depositor, the Master Servicer, the Special Servicer, or the
Majority Subordinate Certificateholder at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer the
Special Servicer, or the Majority Subordinate Certificateholder or the Depositor
to purchase from the Trust Fund all Mortgage Loans and each REO Property
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 aggregate Stated Principal Balance of the Mortgage Loans as of
the Closing Date 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 Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee 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 limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated
-8-
<PAGE>
portions thereof) 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 applicable to agreements 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.
-9-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December 30, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:
-------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By:
-------------------------------------
Authorized Officer
-10-
<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 assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
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<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall be made by check paybable to _______________________
________________________________________________________________________________
and mailed to___________________________________________________________________
Applicable statements and notices should be mailed to_____________________
_______________________________________________________________________________.
This information is provided by ______________________, the Assignee named
above, or ______________, as its agent.
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<PAGE>
EXHIBIT A-15
Form of Class R-III Certificate
<PAGE>
CLASS R-III MORTGAGE PASS-THROUGH CERTIFICATE,
FUNB SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting of a pool of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
FIRST UNION
COMMERCIAL MORTGAGE TRUST
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: as of December 1, 1998 Class R-III Certificate: 100%
Closing Date: December 30, 1998 Aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing
Date: $1,165,454,045.66
First Distribution Date:
January 15, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota,
National Association
Special Servicer:
Lennar Partners, Inc.
Certificate No. 1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS IO-1, CLASS
B, CLASS C, CLASS D, CLASS E, CLASS IO-2, CLASS F, CLASS G AND CLASS H
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 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 POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN). AS A CONDITION TO REGISTRATION OF TRANSFER OF THIS CERTIFICATE, THE
CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE ANY PROSPECTIVE TRANSFEREE
OF SUCH CERTIFICATE, IF IT IS NOT A PLAN OR PERSON DESCRIBED IN CLAUSE (B) OF
THE PRECEDING SENTENCE, TO EXECUTE A CERTIFICATION TO THAT EFFECT SUBSTANTIALLY
IN THE FORM OF EXHIBIT H TO THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
SOLELY 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, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE
-2-
<PAGE>
DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING
AND SERVICING 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 Class R-III
Certificate (as specified above) in that certain beneficial ownership interest
evidenced by all the Class R-III Certificates in the Trust Fund created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among First Union Commercial Mortgage Securities, Inc. (herein
called the "Depositor", which term includes any successor entity under the
Agreement), First Union National Bank (in such capacity, herein called the
"Master Servicer", which term includes any successor entity under the
Agreement), Lennar Partners, Inc. in such capacity, herein called the "Special
Servicer", which term includes any successor entity under the Agreement) and
Norwest Bank Minnesota, National Association (herein called the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. 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, if any, required to be distributed to the Holders of
the Class R-III Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class R-III
Certificate will be made by check mailed to the address of the Person entitled
thereto, as such name and address appear in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
-3-
<PAGE>
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 Class R-III Certificates are issuable in fully registered form only
without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-III Certificates are exchangeable for new
Class R-III Certificates 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 Class R-III Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
[No transfer of any Class R-III 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 of any R-III Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor, or its affiliates), then the Certificate Registrar shall refuse to
register such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit G-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit G-2 or Exhibit G-3 to the Agreement; or (ii) an Opinion of
Counsel satisfactory to the Certificate Registrar to the effect that such
transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be
-4-
<PAGE>
an expense of the Trust Fund or of the Depositor, the Master Servicer, the
Special Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class R-III
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class R-III Certificate without registration or qualification. Any Class R-III
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-III Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor 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.
No transfer of this Class R-III Certificate or any interest therein shall
be made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class R-III Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of transfer of
this Class R-III Certificate, the Certificate Registrar shall have the right to
require the prospective transferee of such Certificate, if it is not a Plan or
Person described in clause (B) of the preceding sentence, to execute a
certification to that effect substantially in the form of Exhibit H to the
Agreement.]
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 Norwest Bank Minnesota, National Association, as paying
agent (the "Paying Agent"), 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 Certificate Registrar under clause (ii)(B) of such Section
5.02(d) to negotiate the terms of any mandatory sale and to execute all
instruments of Transfer and to do all other things necessary in connection with
any such sale. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Paying Agent and the Certificate Registrar of any change or
impending change in its status as a Permitted Transferee. In connection with any
proposed Transfer of any
-5-
<PAGE>
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 I-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 a Responsible Officer of the Certificate
Registrar has actual knowledge that the proposed Transferee is not a Permitted
Transferee, no Transfer of an Ownership Interest in this Certificate to such
proposed Transferee shall be effected.
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 unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit I-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Master Servicer and the
Trustee written notice that it is a "pass-through interest holder" within the
meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring such Ownership Interest, if it is, or is holding such Ownership
Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to downgrade its then-current ratings of any Class of Certificates; and (b) an
Opinion of Counsel, in form and substance satisfactory to the Certificate
Registrar and the Master Servicer, to the effect that such modification of,
addition to or elimination of such provisions will not cause the Trust Fund to
(x) cease to qualify as a REMIC or (y) be subject to an entity-level tax caused
by the transfer of this Class R-III Certificate to a Person which is not a
Permitted Transferee, or
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<PAGE>
cause a Person other than the prospective Transferee to be subject to a
REMIC-related tax caused by the transfer of this Class R-III Certificate to a
Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization" or a "Non-United States Person". A "Disqualified Organization" is
any of (i) the United States, any State or political subdivision thereof, any
possession of the United States, or any agency or instrumentality of any of the
foregoing (other than an instrumentality which is a corporation if all of its
activities are subject to tax and, except for the FHLMC, a majority of its board
of directors is not selected by such governmental unit), (ii) a foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter I of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381 of the Code and (v) any other
Person so designated by the Trustee based upon an Opinion of Counsel provided to
it that the holding of an Ownership Interest in a Class R-III 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 Class R-III 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 or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States or any political subdivision thereof, an estate
whose income from sources without the United States is income for United States
federal income tax purposes regardless of its connection of a trade or business
within the United States, 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 Class R-III Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in
-7-
<PAGE>
connection with any transfer or exchange of Class R-III Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent, 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 to occur 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 Depositor, the Master Servicer, the Special Servicer, or the
Majority Subordinate Certificateholder at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer the
Special Servicer, or the Majority Subordinate Certificateholder or the Depositor
to purchase from the Trust Fund all Mortgage Loans and each REO Property
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 aggregate Stated Principal Balance of the Mortgage Loans as of
the Closing Date 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 Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee 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 limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated
-8-
<PAGE>
portions thereof) 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 applicable to agreements 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.
-9-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December 30, 1998
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:
-------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-III Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By:
-------------------------------------
Authorized Officer
-10-
<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 assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
-1-
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall be made by check paybable to _______________________
________________________________________________________________________________
and mailed to___________________________________________________________________
Applicable statements and notices should be mailed to_____________________
_______________________________________________________________________________.
This information is provided by ______________________, the Assignee named
above, or ______________, as its agent.
-2-
<PAGE>
EXHIBIT A-16
Form of Class R-IV Certificate
<PAGE>
CLASS R-IV MORTGAGE PASS-THROUGH CERTIFICATE,
FUNB SERIES 1999-C1
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION COMMERCIAL MORTGAGE SECURITIES, INC. FIRST UNION
COMMERCIAL MORTGAGE TRUST
Date of Pooling and Servicing Class Principal Balance of the Class
Agreement: R-IV Certificates as of the Settlement
as of December 1, 1998 Date: 100%
Closing Date: Aggregate Stated Principal Balance of
December 30, 1998 the Mortgage Loans as of the Closing
Date: $1,165,454,045.66
Settlement Date: Aggregate Stated Balance of the Mortgage
February 4, 1999 Loans as of the Settlement Date:
$1,163,518,250
First Distribution Date: Trustee:
January 15, 1999 Norwest Bank Minnesota,
National Association
Master Servicer:
First Union National Bank
Special Servicer:
Lennar Partners, Inc.
Certificate No. 1
<PAGE>
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS IO-1, CLASS
B, CLASS C, CLASS D, CLASS E, CLASS IO-2, CLASS F, CLASS G AND CLASS H
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 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 POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN). AS A CONDITION TO REGISTRATION OF TRANSFER OF THIS CERTIFICATE, THE
CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE ANY PROSPECTIVE TRANSFEREE
OF THIS CERTIFICATE, IF IT IS NOT A PLAN OR PERSON DESCRIBED IN CLAUSE (B) OF
THE PRECEDING SENTENCE, TO EXECUTE A CERTIFICATION TO THAT EFFECT SUBSTANTIALLY
IN THE FORM OF EXHIBIT H TO THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
SOLELY 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, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR
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<PAGE>
UNDER THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, INCLUDING, BUT NOT
LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies ________________________________ is the registered owner of
the Percentage Interest evidenced by this Class R-IV Certificate (as specified
above) in that certain beneficial ownership interest evidenced by all the Class
R-IV Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (as amended or supplemented from time to
time, the "Agreement"), among First Union Commercial Mortgage Securities, Inc.
(herein called the "Depositor", which term includes any successor entity under
the Agreement), First Union National Bank (in such capacity, herein called the
"Master Servicer", which term includes any successor entity under the
Agreement), Lennar Partners, Inc. in such capacity, herein called the "Special
Servicer", which term includes any successor entity under the Agreement), and
Norwest Bank Minnesota, National Association (herein called the "Trustee", which
term includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. 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, if any, required to be distributed to the Holders of
the Class R-IV Certificates on the applicable Distribution Date pursuant to the
Agreement. The Distribution Date shall in no case be earlier than the fourth
business day following the Determination Date in the month in which such
Determination Date occurs. All distributions made under the Agreement on this
Class R-IV Certificate will be made by check mailed to the address of the Person
entitled thereto, as such name and address appear in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution.
-3-
<PAGE>
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 Class R-IV Certificates are issuable in fully registered form only
without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-IV Certificates are exchangeable for new
Class R-IV Certificates 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 Class R-IV Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
[No transfer of any Class R-IV 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 of any R-IV Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor, or its affiliates), then the Certificate Registrar shall refuse to
register such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit G-1 to the Agreement, and a certificate from such
Certificateholder's prospective transferee substantially in the form attached as
either Exhibit G-2 or Exhibit G-3 to the Agreement; or (ii) an Opinion of
Counsel satisfactory to the Certificate Registrar to the effect that such
transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master
-4-
<PAGE>
Servicer, the Special Servicer, the Trustee or the Certificate Registrar in
their respective capacities as such), together with the written certification(s)
as to the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee or
the Certificate Registrar is obligated to register or qualify the Class R-IV
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class R-IV Certificate without registration or qualification. Any Class R-IV
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-IV Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor 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.
No transfer of this Class R-IV Certificate or any interest therein shall be
made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class R-IV Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of transfer of
this Class R-IV Certificate, the Certificate Registrar shall have the right to
require the prospective transferee of such Certificate, if it is not a Plan or
Person described in clause (B) of the preceding sentence, to execute a
certification to that effect substantially in the form of Exhibit H to the
Agreement.]
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 Norwest Bank Minnesota, National Association, as paying
agent (the "Paying Agent"), 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 Certificate Registrar under clause (ii)(B) of such Section
5.02(d) to negotiate the terms of any mandatory sale and to execute all
instruments of Transfer and to do all other things necessary in connection with
any such sale. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Master
Servicer, the Paying Agent and the Certificate Registrar 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
-5-
<PAGE>
of this Certificate until its receipt of, an affidavit and agreement
substantially in the form attached as Exhibit I-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 a Responsible
Officer of the Certificate Registrar has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest
in this Certificate to such proposed Transferee shall be effected.
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 unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit I-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Master Servicer and the
Trustee written notice that it is a "pass-through interest holder" within the
meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring such Ownership Interest, if it is, or is holding such Ownership
Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to downgrade its then-current ratings of any Class of Certificates; and (b) an
Opinion of Counsel, in form and substance satisfactory to the Certificate
Registrar and the Master Servicer, to the effect that such modification of,
addition to or elimination of such provisions will not cause the Trust Fund to
(x) cease to qualify as a REMIC or (y) be subject to an entity-level tax caused
by the transfer of this Class R-IV Certificate to a Person which is not a
Permitted Transferee, or cause a Person other than the prospective Transferee to
be subject to a REMIC-related tax caused by the transfer of this
-6-
<PAGE>
Class R-IV Certificate to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization" or a "Non-United States Person". A "Disqualified Organization" is
any of (i) the United States, any State or political subdivision thereof, any
possession of the United States, or any agency or instrumentality of any of the
foregoing (other than an instrumentality which is a corporation if all of its
activities are subject to tax and, except for the FHLMC, a majority of its board
of directors is not selected by such governmental unit), (ii) a foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter I of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381 of the Code and (v) any other
Person so designated by the Trustee based upon an Opinion of Counsel provided to
it that the holding of an Ownership Interest in a Class R-IV 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 Class R-IV 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 or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States or any political subdivision thereof, an estate
whose income from sources without the United States is income for United States
federal income tax purposes regardless of its connection of a trade or business
within the United States, 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 Class R-IV Certificates, but 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 Class R-IV
Certificates.
-7-
<PAGE>
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent, 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 to occur 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 Depositor, the Master Servicer, the Special Servicer, or the
Majority Subordinate Certificateholder at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer the
Special Servicer, or the Majority Subordinate Certificateholder or the Depositor
to purchase from the Trust Fund all Mortgage Loans and each REO Property
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 aggregate Stated Principal Balance of the Mortgage Loans as of
the Closing Date 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 Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee 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 limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
-8-
<PAGE>
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 applicable to agreements 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.
The Trustee makes no representation or warranty as to any of the statements
contained herein or the validity or sufficiency of the Certificates or the
Mortgage Loans and has executed this Certificate in its limited capacity as
Trustee under the Agreement.
-9-
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: February 4, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By:
-------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-IV Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
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 assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
<PAGE>
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall be made by check paybable to _______________________
________________________________________________________________________________
and mailed to___________________________________________________________________
Applicable statements and notices should be mailed to_____________________
_______________________________________________________________________________.
This information is provided by ______________________, the Assignee named
above, or ______________, as its agent.
-2-
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT B
Mortgage Loan Schedule
Control
Number Property Name Address
==============================================================================================================================
<S> <C> <C>
10000 1021/1101/1103-1137/1200 Lawrence; 1200 Clement 1021/1101/1103-1137/1200 Lawrence; 1200 Clement
10003 131-133 Norwood Street 131-133 Norwood Street
10004 415-417 Davis; 527-529 Fairfax 415-417 Davis; 527-529 Fairfax
10019 Royal Palms 40890 Sandy Gale Lane
20007 CVS/Revco Drugstore West Main Street
20022 Lincoln Park West 7738-7853 N.W. 44th St
20025 Midtown Market Shopping Center 764 Airport Rd.
20037 St. Johns Village 10771 Beach Blvd
20042 Towamencin Shopping Village 1758 Allentown Rd.
30013 Lowe's Queensbury NEC of Bay & Quaker Roads
30092 Walgreen Pembroke Pines Pines Boulevard 15911 Pines Boulevard
9821000 Arrowhead Apartments 1912 Cambridge Drive
9821001 Brookstone Manor 135 Elm Street
9821002 Boca Winds 530 N.E. 47th Street
9821003 Hulen Gardens 7415 Tallow Wind Trail
9821004 Lexington Downs 6003 Old Bullard Road
9821005 Saddle Club 3730 South Mill Avenue
9821006 Clarinbridge 770 Towne Green Boulevard
9821007 Convent Ave. 90-100 Convent Avenue
9821009 Duval Manor Associates 6350 Greene Street
9821010 Greenridge Apartments 2045 Highway 41 South
9821011 Hilltop Apartments 908-916 Eastern Avenue, NE
9821012 Knollwood Apartments 205 Old Hull Road
9821013 Azalea Apartments 431 Block Craighead Road
9821014 Signal Hill Apartments 138-102 Signal Hill Drive
9821015 English Garden Apartments 500 West Craighead Road
9821016 Little Lotts Creek 14 East Jones Avenue
9821018 Pendelton Pines 2305 Pendelton Street
9821020 Santa Barbara Apartments 9955 Club Creek
9821021 Villa East 2121 Village Lake Drive
9821022 Winterfield 3509 Burner Drive
9821023 Sharon Arms 4313 Colwick Road
9821024 Granville Apts. 3730 N. Sharon Amity
9821025 Milton Road 1951 Milton Road
9821026 2420 Roswell 2420 Roswell Avenue
9821027 Abbey Apts. 1415 Abbey Place
9821028 Silver Blue Lake 1301 - 1601 NW 103rd Street
9821029 Spanish Oaks 7557 Arlington Expressway
9821030 Sutton Plaza 1230 13th Street, NW
9821031 The Pines at Carolina Place Apartments 12600 Windy Pines Way
9821034 Moorings Apartments 571 Plum Grove Road
9821037 Silver Hill Apartments 4227 Silver Hill Road
9821038 Thrippence 3623 Fountain Avenue
9821039 Cohannet Village 203 - 207 Winthrop Street
9821040 Westgate Apartments 550 Lawrenceville Road
9821041 112, 114, 116,120 Strawberry Hill Road 112-116-120 Strawberry Hill Road
9821042 Ashton Pointe/Evergreen 400 Plaza Trace
9821044 Ashton Pines/Sugar Mill 115 Colerain Road
9821045 Sand Cove Apartments 3813 Gulf Blvd
9821046 Kirnwood 2600 Bolton Boone Drive
9821048 Gardenwood 1110 Garden Walk Boulevard
9821049 Hamilton (5) 1255 New Hampshire Avenue
9821050 The Meadows at Indian Creek 100 Eagle Drive
<CAPTION>
Remaining
Term to
Control Cut-Off Date Monthly Mortgage Maturity Maturity
Number City State Zip Code Balance ($) Debt Service Rate (%) (Mos.) Date
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
10000 Radford VA 24141 2,325,807.83 15,291.75 6.875% 119 11/01/08
10003 Radford VA 24141 854,378.38 5,617.38 6.875% 119 11/01/08
10004 Radford VA 24141 1,234,102.11 8,113.99 6.875% 119 11/01/08
10019 Palm Desert CA 92211 3,444,718.22 22,422.52 6.770% 118 10/01/08
20007 Haw River NC 27258 1,123,217.57 7,203.50 6.625% 118 10/01/08
20022 Sunrise FL 33351 11,748,176.20 78,339.37 7.000% 117 09/01/08
20025 Chapel Hill NC 27514 2,797,758.66 18,854.67 7.120% 179 11/01/13
20037 Jacksonville FL 33612 3,577,531.34 31,981.62 6.813% 118 10/01/08
20042 Lansdale PA 19446 10,186,378.87 68,871.13 6.500% 119 11/01/08
30013 Queensbury NY 12801 11,649,157.48 84,757.90 7.125% 236 08/01/18
30092 Pembroke Pines FL 33029 2,734,176.86 18,909.76 6.500% 234 06/01/18
9821000 Palantine IL 60074 6,969,355.30 46,665.24 7.020% 114 6/1/08
9821001 Milford NH 03055 2,865,284.01 19,064.10 6.950% 113 5/1/08
9821002 Boca Raton FL 33431 2,487,225.71 16,548.70 6.950% 113 5/1/08
9821003 Ft. Worth TX 76133 3,939,765.49 26,213.14 6.950% 113 5/1/08
9821004 Tyler TX 75703 6,925,135.27 46,445.37 7.030% 113 5/1/08
9821005 Tempe AZ 85282 16,788,773.52 111,703.71 6.950% 113 5/1/08
9821006 Kennesaw GA 30144 19,500,000.05 113,425.00 6.980% 174 6/1/13
9821007 New York NY 10027 796,208.60 5,457.41 7.250% 113 5/1/08
9821009 Philadelphia PA 19144 3,883,537.98 26,393.58 7.170% 114 6/1/08
9821010 Greenbrier TN 37073 3,066,316.05 23,410.23 8.375% 353 5/1/28
9821011 Washington DC 20019 1,987,968.37 14,001.60 7.250% 113 5/1/08
9821012 Athens GA 30603 1,268,337.23 9,578.65 8.250% 292 4/1/23
9821013 Charlotte NC 28206 1,133,853.34 8,078.49 7.000% 293 5/1/23
9821014 Statesville NC 28625 2,975,993.03 21,203.38 7.000% 293 5/1/23
9821015 Charlotte NC 28206 1,922,491.51 13,697.38 7.000% 293 5/1/23
9821016 Statesboro GA 30458 1,302,330.41 9,949.35 8.375% 292 4/1/23
9821018 Memphis TN 38114 1,621,789.78 13,835.65 9.125% 293 5/1/23
9821020 Houston TX 77036 1,788,094.10 13,010.52 7.250% 114 6/1/08
9821021 Charlotte NC 28212 2,389,968.39 16,307.17 7.210% 174 6/1/13
9821022 Charlotte NC 28205 1,481,780.43 10,110.44 7.210% 174 6/1/13
9821023 Charlotte NC 28211 764,789.91 5,218.29 7.210% 174 6/1/13
9821024 Charlotte NC 28205 2,931,694.57 20,003.46 7.210% 174 6/1/13
9821025 Charlotte NC 28215 4,033,071.71 27,518.34 7.210% 174 6/1/13
9821026 Charlotte NC 28209 1,361,397.75 9,281.50 7.210% 175 7/1/13
9821027 Charlotte NC 28209 3,469,437.47 23,672.57 7.210% 174 6/1/13
9821028 Miami FL 33147 3,829,086.01 26,229.68 7.250% 114 6/1/08
9821029 Jacksonville FL 32211 3,545,046.54 24,140.77 7.190% 114 6/1/08
9821030 Washington DC 20005 4,978,661.51 33,685.93 7.125% 114 6/1/08
9821031 Pineville NC 28288 5,672,117.91 38,401.96 7.125% 173 5/1/13
9821034 Roselle IL 60172 8,263,664.14 55,331.64 7.020% 114 6/1/08
9821037 Suitland MD 20746 4,180,095.23 28,651.40 7.250% 113 5/1/08
9821038 Chattanooga TN 37412 2,239,080.87 15,595.38 7.420% 114 6/1/08
9821039 Taunton MA 02780 2,549,074.74 17,247.19 7.125% 174 6/1/13
9821040 Lawrenceville NJ 08648 2,845,305.05 19,251.51 7.125% 174 6/1/13
9821041 Stamford CT 06902 3,587,995.99 24,558.35 7.250% 115 7/1/08
9821042 Monroe GA 30655 988,533.60 7,825.33 8.780% 354 6/1/28
9821044 St. Mary's GA 31558 1,345,130.84 10,500.16 8.625% 354 6/1/28
9821045 St. Petersburg FL 33706 2,730,260.34 18,229.29 7.000% 115 7/1/08
9821046 Desoto TX 75115 4,140,244.11 31,909.91 8.500% 211 7/1/16
9821048 Atlanta GA 30349 15,500,000.00 88,802.08 6.875% 115 7/1/08
9821049 Washington DC 20036 16,336,417.51 105,282.24 6.650% 115 7/1/08
9821050 Emmaus PA 18049 13,150,062.23 85,614.95 6.750% 115 7/1/08
</TABLE>
B-1
<PAGE>
<TABLE>
<CAPTION>
Control
Number Property Name Address
==========================================================================================================================
<S> <C> <C>
9821051 Pointe North Apartments 4445 Harriet Lane
9821052 Welby Park Estates 1399 Phillips Road
9821053 Lakeview Townhomes 4811 Likins Circle
9821054 Fox Run 2601 South S.E. Loop
9821056 Rene Village 606 SE Rene Ave
9821057 Kelton Towers 515 Kelton Avenue
9821058 103 Hemenway 103 Hemenway Street
9821059 Vista Bonita Apartments 9313 Tally Ho Road
9821060 Vintage Square Apartments 1176 Rosemarie Lane
9821061 Naples Place 1900-2052 Sunshine Blvd.
9821062 Gardena West Partnership 1261 - 1281 W. Rosecrans Ave.
9821063 Sugarloaf Estates 28 River Road
9821064 The Lenox 6014 Winsome Lane
9821065 Park South Apartments Park South Boulevard
9821066 Southern Pines 15373 St. Charles St.
9821067 Park Lee Apartments 1600 West Highland Avenue
9821068 The Landings 951-969 Wilcox Street
9821069 Scarborough Mews 5th & Orange Streets
9821071 Arbor Apartments 2411 Southwest 35th Place
9821072 825 & 835 Wisconsin Avenue 825 & 835 Wisconsin Avenue
9821074 Hilltop House Apartments 1200 N. Queen Street
9821075 Marlaine North & South Apartments 1201-1203,1225 N. Pierce Street
9821076 Vandermere Mobile Home Park Old Pactolus Road
9821081 Southampton Apartments 1400 Henderson Road
9821082 Salem Pines Apartments 1904 East Mulberry Street
9821097 Forest Towers 3500 and 3550 Washington
9821098 Park Regency Apartments 130 Van Cortlandt Avenue
9821099 Harbour Key Apartments 5749 Gatlin Avenue
9821100 Royal Palm Key Apartments 1401 Village Boulevard
9821101 Coral Key Apartments 3300 Pinewalk Drive North
9821102 Planters Crossing 1447 Stone Rd.
9821103 Rochester Apartments 10933 Rochester Avenue
9821104 11640 Kiowa Avenue 11640 Kiowa Avenue
9821105 The Carlton Apartment Building 11666 Goshen Ave.
9821107 Sprucemont Apartments 257 South 16th St.
9821109 Birchwood Apartments 4829 Coles Manor Place
9821111 Hamiltonian Gardens Warrenville Road
9821112 Woodbine Gardens 1 Woodbine Road
9821115 Tennessee Village Apartments 4404 Tennessee Avenue
9821121 Country Club Estates 413 West 11th Street
9821122 Butler Ridge/Butler Arms Roll-Up 1607 Route 23/115-129 Booton Ave.
9821122.1 Butler Arms 115-129 Booton Avenue
9821122.2 Butler Ridge 1607 Route 23
9821124 Briarwood 1355 Briarwood Road
9821125 Deville 3330 Atlanta Road
9821126 The Highlands 2525 Ward Street
9821130 Shelbourne Towers 860 Twentieth Street
9821133 Coopers Pond Apts. 543 Cricklewood Drive
9821142 Timber Trails 3321 Franklin Street
9821143 Turtle Creek Apts. 358 Toftrees Ave
9821144 321 East 22nd Street 321 East 22nd Street
9821145 Turnberry Towers 1438 Third Avenue
9821146 Dutch Village Apartments 2348 Perring Manor Rd.
<CAPTION>
Remaining
Term to
Control Cut-Off Date Monthly Mortgage Maturity Maturity
Number City State Zip Code Balance ($) Debt Service Rate (%) (Mos.) Date
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
9821051 Bethlehem PA 18017 12,751,575.48 83,020.56 6.750% 115 7/1/08
9821052 New Bedford MA 02745 3,308,228.46 22,110.34 7.010% 115 7/1/08
9821053 Wichita Falls TX 76308 2,949,478.36 19,692.95 7.000% 115 7/1/08
9821054 Tyler TX 75701 2,092,554.12 13,985.46 7.010% 115 7/1/08
9821056 Gresham OR 97030 1,097,564.17 7,410.90 7.125% 117 9/1/08
9821057 Westwood CA 90024 8,471,189.59 55,838.95 6.875% 296 8/1/23
9821058 Boston MA 02115 1,979,214.93 13,206.25 7.000% 116 8/1/08
9821059 Houston TX 77017 1,146,648.42 7,650.98 7.000% 116 8/1/08
9821060 Stockton CA 95207 2,567,706.03 17,334.35 7.117% 176 8/1/13
9821061 Naples FL 34116 2,990,827.04 19,557.76 6.800% 116 8/1/08
9821062 Gardena CA 90247 2,855,387.92 18,804.87 6.870% 116 8/1/08
9821063 Sunderland MA 01375 7,613,799.44 50,853.79 7.010% 116 8/1/08
9821064 Houston TX 77057 3,874,702.01 25,879.76 7.010% 116 8/1/08
9821065 Arden NC 28704 1,540,391.71 11,195.07 7.875% 116 8/1/08
9821066 Gulfport MS 39503 2,505,693.83 16,735.93 7.010% 116 8/1/08
9821067 Phoenix AZ 85015 12,203,457.66 80,612.66 6.900% 116 8/1/08
9821068 Waupun WI 53963 1,227,472.28 9,327.19 8.350% 212 8/1/16
9821069 Media PA 19063 877,435.32 5,854.66 7.000% 176 8/1/13
9821071 Gainesville FL 32608 1,994,449.10 13,575.76 7.200% 116 8/1/08
9821072 Oshkosh WI 54901 1,171,678.20 7,916.19 7.125% 116 8/1/08
9821074 Arlington VA 22209 1,646,134.16 10,839.33 6.875% 117 9/1/08
9821075 Arlington VA 22209 2,045,197.00 13,467.04 6.875% 117 9/1/08
9821076 Greenville NC 27834 996,621.61 7,228.07 7.250% 117 9/1/08
9821081 Angleton TX 77515 2,510,268.49 16,739.01 7.000% 117 9/1/08
9821082 Angleton TX 77515 2,179,024.78 14,530.21 7.000% 117 9/1/08
9821097 Hollywood FL 33021 5,985,545.34 38,915.89 6.750% 177 9/1/13
9821098 Bronx NY 10463 1,297,038.57 8,648.93 7.000% 117 9/1/08
9821099 Orlando FL 32822 16,100,195.72 104,586.44 6.750% 118 10/1/08
9821100 West Palm Beach FL 33409 18,172,003.85 118,044.85 6.750% 118 10/1/08
9821101 Margate FL 33063 16,774,157.40 108,964.48 6.750% 118 10/1/08
9821102 Tallahassee FL 32303 3,990,628.30 26,277.15 6.875% 177 9/1/13
9821103 Los Angeles CA 90024 8,280,000.51 47,955.00 6.950% 118 10/1/08
9821104 Los Angeles CA 90049 4,639,999.57 26,873.33 6.950% 118 10/1/08
9821105 Los Angeles CA 90049 7,079,999.73 41,005.00 6.950% 118 10/1/08
9821107 Philadelphia PA 19109 1,494,589.33 10,482.38 6.875% 117 9/1/08
9821109 Dallas TX 75204 4,697,111.47 35,906.03 8.430% 215 11/1/16
9821111 Middlesex NJ 08846 3,989,331.34 26,078.56 6.125% 118 10/1/08
9821112 Avenel NJ 07001 1,994,665.67 13,039.28 6.125% 118 10/1/08
9821115 Nashville TN 37209 2,693,313.21 17,288.40 6.625% 117 9/1/08
9821121 Alexandria IN 46001 2,306,438.20 14,967.26 6.740% 118 10/1/08
9821122 Butler NJ 07405 8,978,913.67 59,123.59 6.875% 117 9/1/08
9821122.1 Butler NJ 07405 0
9821122.2 Butler NJ 07405 0
9821124 Atlanta GA 30319 5,242,623.62 35,370.22 7.125% 118 10/1/08
9821125 Smyrna GA 30080 4,393,817.87 29,643.62 7.125% 118 10/1/08
9821126 Smyrna GA 30080 3,994,379.90 26,948.74 7.125% 118 10/1/08
9821130 Knoxville TN 37916 2,543,774.59 16,437.68 6.690% 117 9/1/08
9821133 State College PA 16803 3,274,954.53 21,274.02 6.750% 118 10/1/08
9821142 Wisconsin Rapids WI 54494 1,231,615.67 9,047.32 8.000% 118 10/1/08
9821143 State College PA 16803 5,890,924.32 38,267.29 6.750% 118 10/1/08
9821144 New York NY 10010 7,668,533.85 50,452.13 6.875% 118 10/1/08
9821145 New York NY 10028 25,363,076.56 166,866.49 6.875% 118 10/1/08
9821146 Baltimore MD 21234 11,907,000.00 69,414.50 6.770% 130 10/1/09
</TABLE>
B-2
<PAGE>
<TABLE>
<CAPTION>
Control
Number Property Name Address
===============================================================================================================================
<S> <C> <C>
9821149 Greenlawn Apartments 11211 Greenlawn Avenue
9821150 New Meadowbrook Village 903-1005 East Front Street
9821151 Ridgewood Apartments 404 Jones Ferry Road
9821152 Elms Apartment House 1078 New Britain Ave
9821154 Westgrove Apartments 1815-2137 Kensington Drive
9821155 Castilian Lake Park Apartments 11444 137th St. North
9821156 29 Cornelia Street 29 Cornelia Ave
9822000 Gaston Manor 1717 Union Road
9822001 Gastonia Village 850 Majestic Court
9822003 Hickory Manor 2530 16th Street
9822004 Haws Memorial Nursing Home 1004 Holiday Lane
9822005 Ashwood Place 102 Leonard Wood Drive
9822007 Empire Medical Building 200 Hospital Drive
9822012 AmeriHost Inn / Athens 20 East Home St
9822014 Westlake Village Inn 31943 Agoura Road
9822015 Round Grove Crossing Shopping Center / Park Lane Village 297 W. FM 3040 / 502 S. Old Orchard Lane
9822016 Cabin John Mall and Shopping Center 11325 Seven Locks Road
9822017 Tower Plaza 3401 - 3431 Cox Road
9822018 Chapel Trail Commerce Center 911 NW 209th Avenue
9822026 Sack And Save Grocery 915 S.R. 19 North
9822027 Valencia Shopping Center 24125 - 24175 Magic Mountain Parkway
9822029 Layton Crossing Shopping Center 1030, 1052, 1074 and 1160 West Hill Field Road
9822030 Inland Empire Center 16721 Valley Boulevard
9822031 Wilson Square Shopping Center 6855 Wilson Boulevard
9822032 Gateway Shopping Center 855 Interstate10 South
9822033 Prince George's Metro Center 6525 Belcrest Road
9822034 Fairfield Inn by Marriott-East 7879 Eagle Crest Boulevard
9822035 The Money Store 2840 Morris Avenue
9822036 Best Buy store # 545 2201 Farrand Drive
9822037 McAllen Embassy Suites 1800 S. 2nd Street
9822038 Holiday Inn Express 234 Hendersonville Road
9822039 Redwood Heights 4050 12 St. S.E.
9822041 The Crossings at Akers Mill 3051 Akers Mill Road
9822042 Meadows Mall 12002 Southwest Freeway
9822043 Woodmont Corner 7649 Old Georgetown Rd.
9822044 2995 Baseline Office Building 2995 Baseline Rd.
9822045 Marina Shores Shoppes North Great Neck Road
9822046 925 Bryant Street 925 Bryant Street
9822047 Comcast Data Center 1303 Wrights Lane
9822048 Abercorn Street Building 7700 Abercorn Street
9822049 Holiday Inn - Bethlehem 3566 Bath Pike
9822050 Bethlehem Hampton Inn & Suite Routes 22 and 512
9822051 Gwinnett Place Shoppes 3500 Gwinnett Place Drive
9822053 La Cresta Shopping Center/Self Storage 3900 Foothill Boulevard
9822056 Grandview Plaza 2740-2760 N. Grandview
9822058 Oak Knoll Nursing & Rehab Center 37 North Clark
9822059 EZ8 Motel (Good Nite Inn) 5201 South Industrial Road
9822060 48th Executive Court 1107 48th Avenue North
9822061 Gateway Plaza 11465 Carmel Mountain Rd.
9822062 9201 Fourth Avenue 9201 4th Avenue
9822063 Fresh Warehousing 4300 Church Road
9822064 7 Perimeter Road 7 Perimeter Road
9822065 Centre at Woodstock 12195 Hwy 92/East Alabama Rd.
<CAPTION>
Remaining
Term to
Control Cut-Off Date Monthly Mortgage Maturity Maturity
Number City State Zip Code Balance ($) Debt Service Rate (%) (Mos.) Date
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
9821149 Culver City CA 90230 2,693,674.10 17,737.08 6.875% 117 9/1/08
9821150 Plainfield NJ 07061 2,661,423.69 18,420.31 7.375% 177 9/1/13
9821151 Carrboro NC 27510 4,359,597.88 29,804.28 7.250% 357 9/1/28
9821152 West Hartford CT 06110 2,045,330.05 13,638.70 7.000% 117 9/1/08
9821154 Waukesha WI 53188 6,335,122.42 41,714.98 6.875% 117 9/1/08
9821155 Largo FL 33774 3,686,445.93 24,318.73 6.880% 115 7/1/08
9821156 New York NY 10014 1,441,678.45 9,574.83 6.960% 117 9/1/08
9822000 Gastonia NC 28054 2,154,409.69 14,586.01 7.125% 113 5/1/08
9822001 Gastonia NC 28054 1,169,252.40 7,916.19 7.125% 113 5/1/08
9822003 Hickory NC 28601 1,835,975.00 12,430.11 7.125% 113 5/1/08
9822004 Fulton KY 42041 1,787,514.95 13,595.92 7.750% 113 5/1/08
9822005 Frankfort KY 40601 4,958,864.23 34,861.96 6.850% 113 5/1/08
9822007 Glen Burnie MD 21061 4,978,269.17 33,433.19 7.050% 114 6/1/08
9822012 Athens OH 45701 2,721,473.22 22,153.81 7.500% 234 6/1/18
9822014 Westlake Village CA 91361 9,936,122.74 73,493.06 7.438% 114 6/1/08
9822015 Lewisville TX 75067 3,200,743.38 23,477.00 7.330% 113 5/1/08
9822016 Potomac MD 20854 24,663,748.11 189,051.99 6.680% 233 5/1/18
9822017 Richmond VA 23233 1,989,840.85 13,841.07 7.125% 113 5/1/08
9822018 Pembroke Pines FL 33029 2,897,192.96 20,880.74 7.130% 113 5/1/08
9822026 Meridian MS 39307 2,296,314.31 17,606.33 7.250% 113 5/1/08
9822027 Santa Clarita CA 91355 4,468,112.99 32,889.58 7.375% 114 6/1/08
9822029 Layton UT 84041 3,808,490.71 27,033.65 7.610% 113 5/1/08
9822030 Fontana CA 92335 21,416,906.11 143,495.60 7.020% 113 5/1/08
9822031 Jacksonville FL 32210 2,483,843.20 18,271.99 7.375% 114 6/1/08
9822032 Beaumont TX 77701 8,800,359.91 70,600.01 8.610% 102 6/1/07
9822033 Hyattsville MD 20782 24,376,353.06 162,999.11 7.000% 173 5/1/13
9822034 Evansville IN 47715 4,008,700.28 32,936.78 7.625% 174 6/1/13
9822035 Union NJ 07083 6,821,885.94 52,876.14 6.850% 234 6/1/18
9822036 Wilmington DE 19808 3,412,777.00 27,184.42 7.210% 114 6/1/08
9822037 McAllen TX 78503 14,702,468.20 107,166.19 7.270% 114 6/1/08
9822038 Asheville NC 28803 2,672,936.46 22,165.61 7.750% 234 6/1/18
9822039 Salem OR 97302 5,519,358.00 39,669.91 7.125% 115 7/1/08
9822041 Atlanta GA 30339 1,792,081.86 11,975.44 7.000% 114 6/1/08
9822042 Meadows TX 77477 6,771,994.26 46,480.27 7.270% 114 6/1/08
9822043 Bethesda MD 20814 5,979,312.62 40,402.86 7.120% 114 6/1/08
9822044 Boulder CO 80303 1,889,509.95 13,580.69 7.125% 115 7/1/08
9822045 Virginia Beach VA 23451 1,989,259.26 14,481.92 7.270% 115 7/1/08
9822046 San Francisco CA 94103 969,868.71 7,126.08 7.375% 115 7/1/08
9822047 East Goshen PA 19380 2,380,286.53 19,702.77 7.750% 235 7/1/18
9822048 Savannah GA 31406 1,491,619.72 10,661.57 7.063% 115 7/1/08
9822049 Bethlehem PA 18107 10,046,587.94 73,655.46 7.350% 115 7/1/08
9822050 Bethlehem PA 18107 7,062,452.92 51,777.60 7.350% 115 7/1/08
9822051 Atlanta GA 30136 3,579,887.35 25,587.76 7.063% 115 7/1/08
9822053 La Crescenta CA 91214 4,679,521.22 34,062.82 7.280% 116 8/1/08
9822056 Odessa TX 79761 1,843,423.94 12,308.10 7.000% 115 7/1/08
9822058 Ferguson MO 63135 1,149,491.71 8,819.05 7.875% 115 7/1/08
9822059 Las Vegas NV 89118 2,750,797.31 20,433.11 7.500% 115 7/1/08
9822060 Myrtle Beach SC 29577 2,884,366.10 20,961.40 7.250% 115 7/1/08
9822061 San Diego CA 92128 5,679,584.90 37,807.47 6.970% 115 7/1/08
9822062 Brooklyn NY 11209 10,838,381.07 77,038.93 7.000% 115 7/1/08
9822063 Centreville IL 62207 4,981,578.20 40,143.74 7.390% 115 7/1/08
9822064 Manchester NH 03103 3,139,496.51 21,488.55 7.250% 115 7/1/08
9822065 Woodstock GA 30188 6,935,371.16 53,893.41 6.910% 175 7/1/13
</TABLE>
B-3
<PAGE>
<TABLE>
<CAPTION>
Control
Number Property Name Address
===============================================================================================================================
<S> <C> <C>
9822066 Lake Placid Inn & Conference Center 2165 U.S. 27
9822067 Fairfield Inn - Chester 12400 Redwater Creek Rd.
9822068 The Millenium Building 230 Half Mile Road
9822069 Eckerd Drugstore 2406 Little Rock Road
9822070 Comfort Inn Max Meadows Route 2, Box 426B
9822072 1025 W. St. Georges Avenue 1025 W. St. Georges Avenue
9822074 Southeastern Eye Center Roll Up Various
9822075 Valley East Plaza 1520-1550 West Southern Ave.
9822078 Warner Self Storage 6415 DeSota Ave.
9822079 F & W Office Park - Bldg. F 3800 Electric Rd
9822080 Hampton Inn Miami Airport West 3620 NW 79th Ave
9822082 Ramada Limited Biloxi 1768 Beach Boulevard
9822083 Hampton Inn-Airport 4234 South 48th St.
9822085 Briarwood Healthcare Center 1440 Vine Street & 1427 Gaylord Street
9822087 New Brighton Manor 200 Lafayette Ave.
9822089 Best Western Inn at Chimney Hill 901 University Drive
9822090 8578 Santa Monica Blvd 8578 Santa Monica Blvd.
9822091 Glenside Kmart 5432 Glenside Drive
9822092 Piggly Wiggly 535 East Murdock Avenue
9822120 Best Western Mayfair Hotel 1256 W. Seventh Street
9822122 Gateway Plaza-Las Vegas 1306 and 1318 Craig Road
9822123 Bennington Square Shopping Center 3 Kocher Drive
9822124 Boykin Center NW 36th st and NW 79th ST
9822126 Colonial Health Care and Southdale Health Care Centers 3120 N. 21st St. & 3712 Tower Ave.
9822127 One Capital City Plaza 3350 Peachtree Rd.
9822128 Leesburg Plaza Shopping Center 26 Plaza Street
9822131 Best Western Staunton Inn 260 Rowe Road
9822132 Best Western Inn @ Valley View 5050 Valley View Boulevard
9822133 Comfort Inn - Lexington U.S. 11 South, P.O. Box 905
9822134 Comfort Inn Troutville 2654 Lee Highway
9822140 Days Inn Oceanside 435 N. Atlantic Blvd.
9822141 Holiday Inn Express US 11& 64
9822143 Best Western Inn @ Hunt Ridge NWC VA Route 39/Willow Springs Road Intersection
9822145 Hazel Mini Storage 6108 Hazel Avenue
9822146 Panama City Square Shopping Center 513-669 West 23rd Street
9822147 Stratford Square Shopping Center 1661 Eastern Boulevard
9822149 Dyersburg Mall 2700 Lake Road
9822150 Madison Square Shopping Center 2501-2589 Madison Avenue
9822152 Natchez Mall 350 John R. Junkin Drive
9822156 Town West Plaza 1400 Westmore Avenue
9822159 Celluar One Shopping Center 1170 West Patrick Street
9822167 Chesapeake Station Maryland Route 261
9822174 Michigan Marketplace 1183 Manistee Highway
9822176 Shoppes at Home Depot 1135-41 Bell Road
9822183 Rainbow Express Village Center 130-240 S. Rainbow Blvd.
9822185 Sun Center 101 SE 2nd Place
9822187 Days Inn Central 315 West 3300 South
9822188 Holiday Inn Rocky Mount 651 Winstead Avenue
9822189 4600 N. Harlem 4600 N. Harlem
9822191 Grass Valley Shopping Center 111-151 McKnight Way
9822192 Grandview Plaza Office Building 10850 Traverse Hwy
9823000 CVS Waltham Main 826 Main St.
9823009 Rite Aid Dover 1580 S. Dupont Highway
<CAPTION>
Remaining
Term to
Control Cut-Off Date Monthly Mortgage Maturity Maturity
Number City State Zip Code Balance ($) Debt Service Rate (%) (Mos.) Date
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
9822066 Lake Placid FL 33852 1,688,320.09 13,695.08 7.500% 236 8/1/18
9822067 Chester VA 23831 4,244,865.43 33,950.65 7.313% 115 7/1/08
9822068 Middletown NJ 07701 5,972,116.81 42,139.20 6.930% 116 8/1/08
9822069 Charlotte NC 28214 1,695,045.52 11,310.14 7.000% 116 8/1/08
9822070 Max Meadows VA 24360 1,792,474.01 13,301.84 7.500% 176 8/1/13
9822072 Linden NJ 07036 1,991,031.81 14,295.46 7.125% 116 8/1/08
9822074 Various NC Various 5,037,802.85 46,197.39 7.125% 176 8/1/13
9822075 Mesa AZ 85202 10,269,064.74 67,663.67 6.875% 116 8/1/08
9822078 Woodland Hills CA 91367 2,339,472.09 16,804.70 7.130% 116 8/1/08
9822079 Roanoke VA 24018 2,370,730.75 21,739.95 7.125% 176 8/1/13
9822080 Miami FL 33166 6,272,715.49 45,790.82 7.313% 176 8/1/13
9822082 Biloxi MS 39531 2,091,219.69 15,518.81 7.500% 117 9/1/08
9822083 Phoenix AZ 85040 7,405,663.28 54,359.17 7.375% 116 8/1/08
9822085 Denver CO 80206 5,879,355.63 41,888.35 7.050% 117 9/1/08
9822087 Staten Island NY 10301 19,896,942.28 162,712.17 7.630% 237 9/1/18
9822089 College Station TX 77840 2,466,944.11 18,225.68 7.460% 117 9/1/08
9822090 West Hollywood CA 90069 7,976,901.20 54,166.08 6.900% 117 9/1/08
9822091 Richmond VA 23228 2,475,993.98 22,331.17 6.900% 177 9/1/13
9822092 Oshkosh WI 54901 1,619,264.28 11,485.16 7.000% 117 9/1/08
9822120 Los Angeles CA 90017 4,833,973.21 35,447.66 7.375% 117 9/1/08
9822122 N Las Vegas NV 89030 2,891,650.13 19,391.25 7.050% 116 8/1/08
9822123 Bennington VT 05201 3,985,881.26 28,271.17 7.000% 117 9/1/08
9822124 Miami FL 33166 3,982,269.42 28,751.41 7.188% 176 8/1/13
9822126 Superior WI 54880 1,343,038.97 10,978.93 7.625% 117 9/1/08
9822127 Atlanta GA 30326 46,000,000.00 267,375.00 6.750% 117 9/1/08
9822128 Leesburg VA 20176 9,900,000.00 54,496.00 6.510% 118 10/1/08
9822131 Staunton VA 24401 3,178,740.29 22,546.26 7.000% 117 9/1/08
9822132 Roanoke VA 24012 3,625,159.01 25,712.63 7.000% 117 9/1/08
9822133 Lexington VA 24450 3,736,763.68 26,504.22 7.000% 117 9/1/08
9822134 Troutville VA 24175 2,428,398.15 17,224.21 7.000% 117 9/1/08
9822140 Ft. Lauderdale FL 33304 3,352,160.05 23,480.53 6.875% 118 10/1/08
9822141 Lexington VA 24450 2,540,999.31 18,022.87 7.000% 117 9/1/08
9822143 Lexington VA 24450 5,081,998.61 36,045.74 7.000% 117 9/1/08
9822145 Orangevale CA 95662 1,464,847.43 10,427.19 7.040% 117 9/1/08
9822146 Panama City FL 32405 13,339,448.97 86,652.71 6.750% 82 10/1/05
9822147 Montgomery AL 36117 5,918,881.24 38,448.90 6.750% 82 10/1/05
9822149 Dyersburg TN 38024 8,646,678.74 56,168.60 6.750% 82 10/1/05
9822150 Montgomery AL 36107 1,837,169.63 11,934.20 6.750% 82 10/1/05
9822152 Natchez MS 39120 8,906,278.81 57,854.95 6.750% 82 10/1/05
9822156 Terrell TX 75160 2,594,205.75 18,584.10 7.125% 118 10/1/08
9822159 Frederick MD 21703 3,092,332.71 20,624.38 7.000% 177 9/1/13
9822167 Chesapeake Beach MD 20732 2,918,031.25 19,068.81 6.800% 117 9/1/08
9822174 Manistee MI 49660 1,797,392.55 11,975.44 7.000% 82 10/1/05
9822176 Antioch TN 37013 1,992,965.19 14,161.11 7.020% 117 9/1/08
9822183 Las Vegas NV 89128 4,019,055.46 26,562.52 6.920% 118 10/1/08
9822185 Gainesville FL 32601 2,986,855.31 21,684.21 7.250% 116 8/1/08
9822187 Salt Lake City UT 84115 3,985,248.13 31,271.17 8.150% 176 8/1/13
9822188 Rocky Mount NC 27804 7,467,138.31 54,210.51 7.250% 116 8/1/08
9822189 Harwood Heights IL 60062 2,506,314.57 17,976.55 7.125% 117 9/1/08
9822191 Grass Valley CA 95945 8,985,111.54 56,531.46 6.440% 118 10/1/08
9822192 Traverse City MI 49684 2,744,287.39 20,322.26 7.500% 118 10/1/08
9823000 Waltham MA 02451 3,668,233.60 28,198.57 7.250% 241 1/1/19
9823009 Dover DE 19901 2,634,754.87 18,320.35 6.942% 258 6/1/20
</TABLE>
B-4
<PAGE>
<TABLE>
<CAPTION>
Control
Number Property Name Address
===============================================================================================================================
<S> <C> <C>
9823010 Rite Aid Littleton 118 136 Meadow Street
9823012 Rite Aid Louisville - Taylor & Bluegrass 4901 Taylor
9823026 Rite Aid - Citrus Heights 6422 Tupelo Drive
9823028 Rite Aid - Portland 1952 North Lombard Street
9823030 Walgreens Ft Worth 6555 Forest Hill Drive
9823031 Walgreen Jacksonville St Augustine 4297 Oldfield Crossing Drive
9823032 Walgreen Melbourne Wickham Wickham Road & Post Road
9823033 CVS York Richland 165 South Richland Avenue
9823035 Edwards Supermarket - Teaneck 665 American Legion Drive
9823042 Motel 6 1118 Austin AP 5330 N. Interregional Highway
9823054 Motel 6 1261 Houston - Spring 19606 Cypresswood Court
9823069 Motel 6 1273 Portland One Riverside Street
9823072 Motel 6 352 Rapid City 620 E. Latrobe Street
9823074 Motel 6 134 San Antonio (N) 9503 Interstate Highway 35 No.
9823076 Motel 6 284 South Deerfield Route 5 & 10
9823082 Rite Aid Norfolk 6124 Chesapeake Boulevard
9823094 Eckerd Pompano Sample 850 East Sample Road
9823097 IHOP Douglasville Douglas Blvd Douglas Blvd & Georgia St Hgwy 5
9823098 Bunzl Hicksville Duffy 300 Duffy Avenue
9823099 CVS Columbia Sparkleberry Sparkleberry Lane & Clemson Road
9823101 CVS Rochester Henrietta 2580 East Henrietta Road
9823102 Lowes Hattiesburg Weathersby US Highway 98 and Weathersby Rd
9823109 Rite Aid - Dixie Highway, Lousiville 4721 Dixie Highway
9823113 Eckerd - Charlotte - Harris Blvd 7115 East Harris Blvd
9823114 Rite Aid Battle Creek Raymond & E. Michigan
9823115 Rite Aid Saginaw Genesee 525 West Genesee Avenue
9823118 Sears Union Center Island 2191 Route 22 Center Island
9823121 Walgreen Hialeah 4th Ave SEC Southeast 4th Ave
<CAPTION>
Remaining
Term to
Control Cut-Off Date Monthly Mortgage Maturity Maturity
Number City State Zip Code Balance ($) Debt Service Rate (%) (Mos.) Date
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
9823010 Littleton NH 03263 3,171,464.19 22,052.27 6.942% 258 6/1/20
9823012 Louisville KY 40217 2,345,714.93 16,128.00 6.826% 258 6/1/20
9823026 Citrus Heights CA 95621 5,132,894.66 35,690.76 6.942% 258 6/1/20
9823028 Portland OR 97201 2,270,384.47 15,606.22 6.942% 258 6/1/20
9823030 Forest Hill TX 76140 2,367,466.35 18,647.23 7.000% 232 4/1/18
9823031 Jacksonville FL 32223 2,516,933.98 20,134.47 7.125% 229 1/1/18
9823032 Melbourne FL 32935 2,720,928.37 21,811.32 7.125% 228 12/1/17
9823033 York PA 17404 1,629,795.92 12,714.10 6.900% 233 5/1/18
9823035 Teaneck NJ 07666 8,516,651.39 55,502.04 7.021% 233 5/1/18
9823042 Austin TX 78751 5,866,628.32 35,370.88 7.235% 210 6/1/16
9823054 Spring TX 77388 3,429,285.15 20,675.74 7.235% 210 6/1/16
9823069 Portland ME 04102 4,610,168.47 27,795.48 7.235% 210 6/1/16
9823072 Rapid City SD 57701 4,043,344.48 24,378.00 7.235% 210 6/1/16
9823074 San Antonio TX 78501 2,616,837.43 15,777.34 7.235% 210 6/1/16
9823076 South Deerfield MA 01373 3,297,026.22 19,878.32 7.235% 210 6/1/16
9823082 Norfolk VA 23513 2,741,955.57 18,611.00 6.826% 259 7/1/20
9823094 Pompano Beach FL 33064 2,422,574.84 17,212.62 6.938% 230 2/1/18
9823097 Douglasville GA 30135 1,255,603.26 9,014.25 7.750% 292 4/1/23
9823098 Hicksville NY 11801 6,497,306.79 52,535.22 7.000% 174 6/1/13
9823099 Columbia SC 29223 1,788,584.14 13,457.97 7.170% 229 1/1/18
9823101 Henrietta NY 14623 1,604,900.79 11,518.05 7.000% 229 1/1/18
9823102 Hattiesburg MS 39402 10,724,113.96 92,462.14 8.125% 228 12/1/17
9823109 Louisville KY 40210 2,566,522.39 17,641.82 6.942% 258 6/1/20
9823113 Charlotte NC 28227 2,333,036.86 17,381.69 6.700% 234 6/1/18
9823114 Battle Creek MI 49107 1,962,119.87 15,513.52 7.130% 235 7/1/18
9823115 Saginaw MI 48602 2,649,266.52 21,202.43 7.290% 235 7/1/18
9823118 Union NJ 07081 1,160,374.04 9,585.71 7.000% 177 9/1/13
9823121 Hialeah FL 33010 2,407,803.07 17,046.59 6.875% 237 9/1/18
</TABLE>
B-5
<PAGE>
<TABLE>
<CAPTION>
Remaining Master
Amortization Servicing Interest Interest
Control Term Fee Rate Accrual Accrual
Number (Mos.) Seller (%) Basis During IO Title Vesting Property Type
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
10000 359 FUNB 0.040% Actual/360 NA Multifamily - Conventional
10003 359 FUNB 0.040% Actual/360 NA Multifamily - Conventional
10004 359 FUNB 0.040% Actual/360 NA Multifamily - Conventional
10019 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
20007 358 FUNB 0.040% Actual/360 NA Retail - Anchored
20022 357 FUNB 0.040% Actual/360 NA Retail - Unanchored
20025 359 FUNB 0.040% Actual/360 NA Retail - Unanchored
20037 178 FUNB 0.040% Actual/360 NA Retail - Unanchored
20042 299 FUNB 0.040% Actual/360 NA Retail - Anchored
30013 286 FUNB 0.040% 30/360 NA CTL - Retail
30092 283 FUNB 0.040% 30/360 NA CTL - Retail
9821000 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821001 353 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821002 353 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821003 353 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821004 353 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821005 353 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821006 360 FUNB 0.040% 30/360 30/360 Multifamily - Conventional
9821007 353 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821009 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821010 353 FUNB 0.040% 30/360 NA Multifamily - Sec. 42
9821011 323 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821012 352 FUNB 0.040% 30/360 NA Multifamily - Sec. 42
9821013 293 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821014 293 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821015 293 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821016 352 FUNB 0.040% 30/360 NA Multifamily - Sec. 42
9821018 293 FUNB 0.040% 30/360 NA Multifamily - Sec. 42
9821020 294 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821021 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821022 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821023 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821024 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821025 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821026 355 FUNB 0.040% Actual/360 NA Leasehold Multifamily - Conventional
9821027 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821028 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821029 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821030 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821031 353 FUNB 0.040% Actual/360 NA Multifamily - Sec. 42
9821034 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821037 353 FUNB 0.090% Actual/360 NA Multifamily - Conventional
9821038 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821039 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821040 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821041 355 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821042 354 FUNB 0.040% 30/360 NA Multifamily - Sec. 42
9821044 354 FUNB 0.040% 30/360 NA Multifamily - Sec. 42
9821045 355 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821046 355 FUNB 0.040% Actual/360 NA Multifamily - Sec. 42
9821048 360 FUNB 0.040% Actual/360 30/360 Multifamily - Conventional
9821049 355 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821050 355 FUNB 0.040% Actual/360 NA Multifamily - Conventional
<CAPTION>
Lease Cut-Off Cross
Control Enhance- Date LTV Collateralized
Number Largest Tenant Name ment RVI DSCR (x) (%) Groups
===============================================================================================================
<S> <C> <C> <C> <C> <C> <C>
10000 1.43 75.0% Collegiate
10003 1.41 76.6% Collegiate
10004 1.46 73.7% Collegiate
10019 1.27 74.9%
20007 CVS / Revco Drugstore 1.47 73.7%
20022 Doris Meat Market 1.31 74.8%
20025 Ladies Health and Fitness 1.29 75.1%
20037 Georgia Carpet Outlet 1.25 67.5%
20042 Genaurdi's Family Markets 1.39 67.5%
30013 Lowe's Home Centers, Inc TRUE TRUE 1.00 98.7%
30092 Walgreen Company TRUE TRUE 1.12 91.1%
9821000 1.34 77.4%
9821001 1.35 79.6%
9821002 1.53 79.6%
9821003 1.25 79.6%
9821004 1.33 79.6%
9821005 1.22 74.6%
9821006 1.25 72.5%
9821007 1.31 72.4%
9821009 1.25 79.7%
9821010 1.22 79.0%
9821011 1.49 71.8%
9821012 1.16 84.6%
9821013 1.46 76.9%
9821014 1.31 79.4%
9821015 1.30 76.9%
9821016 1.21 78.0%
9821018 1.20 81.1%
9821020 1.29 74.5%
9821021 1.41 79.7%
9821022 1.25 76.8%
9821023 1.85 79.7%
9821024 1.28 79.7%
9821025 1.36 77.6%
9821026 1.28 68.1%
9821027 1.34 79.2%
9821028 1.36 73.6%
9821029 1.58 79.7%
9821030 1.30 73.5%
9821031 1.44 83.4%
9821034 1.25 79.5%
9821037 1.48 73.3%
9821038 1.33 79.7%
9821039 1.41 79.7%
9821040 1.26 79.0%
9821041 1.28 57.0%
9821042 1.17 81.0%
9821044 1.15 81.5%
9821045 1.30 75.3%
9821046 1.19 72.6%
9821048 1.21 79.9%
9821049 1.28 79.7%
9821050 1.34 79.7%
</TABLE>
B-6
<PAGE>
<TABLE>
<CAPTION>
Remaining Master
Amortization Servicing Interest Interest
Control Term Fee Rate Accrual Accrual
Number (Mos.) Seller (%) Basis During IO Title Vesting Property Type
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
9821051 355 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821052 355 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821053 355 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821054 355 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821056 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821057 356 FUNB 0.040% 30/360 NA Multifamily - Conventional
9821058 356 FUNB 0.140% Actual/360 NA Multifamily - Conventional
9821059 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821060 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821061 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821062 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821063 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821064 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821065 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821066 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821067 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821068 356 FUNB 0.040% Actual/360 NA Multifamily - Sec. 42
9821069 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821071 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821072 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821074 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821075 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821076 297 FUNB 0.090% Actual/360 NA Mobile Home Park
9821081 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821082 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821097 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821098 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821099 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821100 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821101 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821102 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821103 360 FUNB 0.040% 30/360 30/360 Multifamily - Conventional
9821104 360 FUNB 0.040% 30/360 30/360 Multifamily - Conventional
9821105 360 FUNB 0.040% 30/360 30/360 Multifamily - Conventional
9821107 297 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821109 359 FUNB 0.040% Actual/360 NA Multifamily - Sec. 42
9821111 298 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821112 298 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821115 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821121 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821122 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821122.1 FUNB Multifamily - Conventional
9821122.2 FUNB Multifamily - Conventional
9821124 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821125 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821126 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821130 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821133 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821142 358 FUNB 0.040% Actual/360 NA Multifamily - Sec. 42
9821143 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821144 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821145 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821146 360 FUNB 0.040% Actual/360 Actual/360 Multifamily - Conventional
<CAPTION>
Lease Cut-Off Cross
Control Enhance- Date LTV Collateralized
Number Largest Tenant Name ment RVI DSCR (x) (%) Groups
===============================================================================================================
<S> <C> <C> <C> <C> <C> <C>
9821051 1.30 79.7%
9821052 1.55 79.7%
9821053 1.27 79.7%
9821054 1.38 79.7%
9821056 1.29 78.4%
9821057 1.43 69.7%
9821058 1.54 66.0%
9821059 1.28 69.5%
9821060 1.36 65.0%
9821061 1.40 68.3%
9821062 1.26 79.8%
9821063 1.53 79.8%
9821064 1.24 73.9%
9821065 1.23 79.8%
9821066 1.25 69.6%
9821067 1.22 79.8%
9821068 1.15 76.7%
9821069 1.29 79.8%
9821071 1.31 79.8%
9821072 1.45 67.3%
9821074 1.21 77.5% Murphy III
9821075 1.53 62.5% Murphy III
9821076 1.26 71.4%
9821081 1.21 78.5%
9821082 1.30 79.8%
9821097 1.26 74.8%
9821098 1.33 68.3%
9821099 1.37 73.2%
9821100 1.30 79.0%
9821101 1.24 79.9%
9821102 1.27 79.8%
9821103 1.21 77.4%
9821104 1.22 72.5%
9821105 1.20 78.7%
9821107 1.60 65.0%
9821109 1.53 62.6%
9821111 1.64 66.5%
9821112 1.32 52.5%
9821115 1.37 71.4%
9821121 1.43 74.9%
9821122 1.27 79.1%
9821122.1
9821122.2
9821124 1.26 74.9%
9821125 1.24 73.2%
9821126 1.23 79.9%
9821130 1.37 70.7%
9821133 1.39 79.9%
9821142 1.15 84.9%
9821143 1.37 79.9%
9821144 1.35 79.9%
9821145 1.20 79.3%
9821146 1.35 81.0%
</TABLE>
B-7
<PAGE>
<TABLE>
<CAPTION>
Remaining Master
Amortization Servicing Interest Interest
Control Term Fee Rate Accrual Accrual
Number (Mos.) Seller (%) Basis During IO Title Vesting Property Type
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
9821149 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821150 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821151 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821152 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821154 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821155 355 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821156 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9822000 353 FUNB 0.040% Actual/360 NA Healthcare - Assisted Living
9822001 353 FUNB 0.040% Actual/360 NA Healthcare - Assisted Living
9822003 353 FUNB 0.040% Actual/360 NA Healthcare - Assisted Living
9822004 293 FUNB 0.040% Actual/360 NA Healthcare - Skilled Nursing
9822005 293 FUNB 0.040% Actual/360 NA Healthcare - Congregate Care
9822007 354 FUNB 0.040% Actual/360 NA Office - Medical
9822012 234 FUNB 0.040% Actual/360 NA Leasehold Hospitality - Limited Service
9822014 294 FUNB 0.040% Actual/360 NA Hospitality - Full Service
9822015 293 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822016 233 FUNB 0.040% Actual/360 NA Retail - Anchored
9822017 324 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822018 293 FUNB 0.040% Actual/360 NA Industrial - Warehouse/Distribution
9822026 257 FUNB 0.040% Actual/360 NA Retail - Anchored
9822027 294 FUNB 0.040% 30/360 NA Retail - Unanchored
9822029 353 FUNB 0.040% Actual/360 NA Retail - Anchored
9822030 353 FUNB 0.040% Actual/360 NA Retail - Anchored
9822031 294 FUNB 0.040% Actual/360 NA Retail - Anchored
9822032 312 FUNB 0.040% Actual/360 NA Retail - Anchored
9822033 353 FUNB 0.040% Actual/360 NA Leasehold & Fee Office
9822034 234 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822035 234 FUNB 0.040% Actual/360 NA Leasehold Office
9822036 234 FUNB 0.040% Actual/360 NA Retail - Anchored
9822037 294 FUNB 0.040% Actual/360 NA Hospitality - Full Service
9822038 234 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822039 295 FUNB 0.040% Actual/360 NA Healthcare - Assisted Living
9822041 354 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822042 354 FUNB 0.040% Actual/360 NA Retail - Anchored
9822043 355 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822044 295 FUNB 0.040% Actual/360 NA Office
9822045 295 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822046 295 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822047 235 FUNB 0.040% Actual/360 NA Office
9822048 295 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822049 295 FUNB 0.040% Actual/360 NA Hospitality - Full Service
9822050 295 FUNB 0.040% Actual/360 NA Hospitality - Full Service
9822051 295 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822053 296 FUNB 0.040% Actual/360 NA Mixed Use - Self Storage/Retail
9822056 355 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822058 295 FUNB 0.040% Actual/360 NA Healthcare - Skilled Nursing
9822059 295 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822060 295 FUNB 0.040% Actual/360 NA Office
9822061 355 FUNB 0.040% Actual/360 NA Retail - Anchored
9822062 295 FUNB 0.040% Actual/360 NA Office
9822063 235 FUNB 0.040% Actual/360 NA Industrial - Warehouse/Distribution
9822064 355 FUNB 0.040% Actual/360 NA Leasehold Industrial - Warehouse/Distribution
9822065 235 FUNB 0.040% Actual/360 NA Retail - Anchored
<CAPTION>
Lease Cut-Off Cross
Control Enhance- Date LTV Collateralized
Number Largest Tenant Name ment RVI DSCR (x) (%) Groups
===============================================================================================================
<S> <C> <C> <C> <C> <C> <C>
9821149 1.49 74.8%
9821150 1.28 79.8%
9821151 1.26 75.2%
9821152 1.24 75.8%
9821154 1.33 76.3%
9821155 1.30 76.8%
9821156 1.25 70.3%
9822000 1.42 71.8%
9822001 1.66 57.2%
9822003 1.30 74.5%
9822004 2.13 54.2%
9822005 1.44 77.5%
9822007 Chesapeake Orthopedic and Sports Medicine 1.79 56.9%
9822012 1.48 59.2%
9822014 1.64 44.7%
9822015 Fitness World 1.31 74.4%
9822016 Giant Foods 1.37 60.9%
9822017 El Paso Mexican Restaurant 1.32 73.0%
9822018 American Aviation 1.43 77.3%
9822026 Jitney-Jungle Stores of America 1.26 74.1%
9822027 Blockbuster Music 1.27 74.5%
9822029 Deseret Industries 1.30 74.7%
9822030 Vons - Store #55 (Safeway Credit) 1.26 74.6%
9822031 Food Lion # 522 1.30 73.1%
9822032 White House 1.31 67.7%
9822033 HHS 11B-90186 1.30 71.7%
9822034 1.46 74.2%
9822035 The Money Store 1.30 73.6%
9822036 Best Buy 1.45 50.2%
9822037 1.60 65.3%
9822038 1.73 74.3%
9822039 1.46 72.6%
9822041 Jos A. Bank 1.51 79.7%
9822042 Garden Ridge, Inc. 1.25 73.6%
9822043 Maryland Youth Ballet 1.32 64.3%
9822044 Geomega 1.29 72.7%
9822045 West Marine 1.35 75.1%
9822046 Georgiou Retail Stores 1.26 73.8%
9822047 Comcast Cable Communications 1.20 74.4%
9822048 Perrie-Swan Sales (Audio Warehouse) 1.32 74.6% Segall
9822049 1.46 71.8% Gateway
9822050 1.40 70.6% Gateway
9822051 Gallery Fine Furniture 1.36 74.6% Segall
9822053 The Fish Cove 1.31 68.8%
9822056 Kentuckiana Restaurants dba Gatti's 1.30 78.4%
9822058 2.02 69.7%
9822059 1.49 69.6%
9822060 GSA 1.33 68.7%
9822061 Good Guys 1.31 63.8%
9822062 Metropolitan Life Insurance Co. 1.30 67.3%
9822063 M.J. Resurrection, Inc. 1.37 74.4%
9822064 U.S. Postal Service 1.47 73.9%
9822065 Publix 1.30 72.2%
</TABLE>
B-8
<PAGE>
<TABLE>
<CAPTION>
Remaining Master
Amortization Servicing Interest Interest
Control Term Fee Rate Accrual Accrual
Number (Mos.) Seller (%) Basis During IO Title Vesting Property Type
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
9822066 236 FUNB 0.040% Actual/360 NA Hospitality - Full Service
9822067 236 FUNB 0.090% Actual/360 NA Hospitality - Limited Service
9822068 296 FUNB 0.040% Actual/360 NA Office
9822069 356 FUNB 0.040% Actual/360 NA Retail - Anchored
9822070 296 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822072 296 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822074 176 FUNB 0.040% Actual/360 NA Office - Medical
9822075 356 FUNB 0.040% Actual/360 NA Retail - Anchored
9822078 296 FUNB 0.040% Actual/360 NA Self Storage
9822079 176 FUNB 0.040% Actual/360 NA Office
9822080 296 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822082 296 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822083 296 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822085 297 FUNB 0.040% Actual/360 NA Healthcare - Skilled Nursing
9822087 237 FUNB 0.040% Actual/360 NA Leasehold Healthcare - Skilled Nursing
9822089 297 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822090 327 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822091 177 FUNB 0.040% 30/360 NA Retail - Anchored
9822092 297 FUNB 0.040% Actual/360 NA Retail - Anchored
9822120 297 FUNB 0.040% Actual/360 NA Hospitality - Full Service
9822122 356 FUNB 0.040% Actual/360 NA Retail - Anchored
9822123 297 FUNB 0.040% Actual/360 NA Retail - Anchored
9822124 296 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822126 237 FUNB 0.040% Actual/360 NA Healthcare - Skilled Nursing
9822127 360 FUNB 0.040% Actual/360 Actual/360 Office
9822128 336 FUNB 0.040% Actual/360 $54,496.00 per Retail-Anchored
month during IO
(avg of Act/360
over IO period
9822131 297 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822132 297 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822133 297 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822134 297 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822140 298 FUNB 0.040% Actual/360 NA Hospitality - Full Service
9822141 297 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822143 297 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822145 297 FUNB 0.040% Actual/360 NA Self Storage
9822146 358 FUNB 0.040% Actual/360 NA Retail - Anchored
9822147 358 FUNB 0.040% Actual/360 NA Retail - Anchored
9822149 358 FUNB 0.040% Actual/360 NA Retail - Anchored
9822150 358 FUNB 0.040% Actual/360 NA Retail - Anchored
9822152 358 FUNB 0.040% Actual/360 NA Retail - Anchored
9822156 298 FUNB 0.040% Actual/360 NA Retail - Anchored
9822159 357 FUNB 0.040% 30/360 NA Retail - Unanchored
9822167 357 FUNB 0.040% Actual/360 NA Retail - Anchored
9822174 358 FUNB 0.040% Actual/360 NA Retail - Anchored
9822176 297 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822183 358 FUNB 0.040% Actual/360 NA Retail - Anchored
9822185 296 FUNB 0.040% Actual/360 NA Mixed Use - Office/Retail
9822187 296 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822188 296 FUNB 0.040% Actual/360 NA Hospitality - Full Service
9822189 297 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822191 358 FUNB 0.040% Actual/360 NA Retail - Anchored
9822192 298 FUNB 0.040% Actual/360 NA Office
9823000 241 FUNB 0.040% 30/360 NA CTL - Retail
9823009 309 FUNB 0.040% 30/360 NA CTL - Retail
<CAPTION>
Lease Cut-Off Cross
Control Enhance- Date LTV Collateralized
Number Largest Tenant Name ment RVI DSCR (x) (%) Groups
===============================================================================================================
<S> <C> <C> <C> <C> <C> <C>
9822066 1.47 73.4%
9822067 1.54 74.5%
9822068 Millenium America 1.25 73.7%
9822069 Eckerd 1.27 78.1%
9822070 1.46 71.7%
9822072 Blockbuster 1.48 40.6%
9822074 Southeastern Eye Center Greensboro 1.30 66.2%
9822075 Bed, Bath & Beyond 1.27 82.2%
9822078 Paul Jardin of USA 1.40 57.1%
9822079 Allstate Insurance Company 1.35 47.4%
9822080 1.65 62.1%
9822082 1.47 69.7%
9822083 1.41 74.1%
9822085 1.83 53.0%
9822087 1.65 62.8%
9822089 1.41 74.8%
9822090 24 Hour Fitness 1.49 65.1%
9822091 K-Mart 2.11 37.0%
9822092 Piggly Wiggly 1.30 77.9%
9822120 1.45 52.0%
9822122 Rancher Bar & Grill 1.26 72.3%
9822123 K-Mart 1.41 66.4%
9822124 El Tropico Rest. 1.37 67.5%
9822126 1.50 61.1%
9822127 Blue Cross/Blue Shield 1.27 73.7%
9822128 K-Mart 1.65 55.0%
9822131 1.57 72.2%
9822132 1.62 74.8% DOM
9822133 1.48 74.7% DOM
9822134 1.46 74.7% DOM
9822140 1.59 69.8%
9822141 1.39 74.7% DOM
9822143 1.69 74.7% DOM
9822145 1.41 65.1%
9822146 Wal-Mart 1.38 79.9%
9822147 Waccamaw Pottery 1.39 77.9%
9822149 Peebles 1.36 79.9%
9822150 CVS (Revco) 1.43 79.9%
9822152 McRae's 1.37 74.2%
9822156 Big Lots 1.31 74.1%
9822159 Blockbuster Video 1.33 73.6%
9822167 Roland's Supermarket 1.47 74.8%
9822174 Prevo's 1.29 74.9%
9822176 Evergreen Restaurant 1.41 68.7%
9822183 American Drug Stores 1.26 71.8%
9822185 Downtown Athletic Club 1.34 74.7%
9822187 1.43 67.6%
9822188 1.40 71.8%
9822189 Petco 1.27 71.6%
9822191 K-Mart 1.34 64.9%
9822192 Distribution solutions Inter 1.34 71.3%
9823000 CVS Corporation TRUE 1.01 94.1%
9823009 Rite Aid of Delaware TRUE 1.00 91.8%
</TABLE>
B-9
<PAGE>
<TABLE>
<CAPTION>
Remaining Master
Amortization Servicing Interest Interest
Control Term Fee Rate Accrual Accrual
Number (Mos.) Seller (%) Basis During IO Title Vesting Property Type
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
9823010 309 FUNB 0.040% 30/360 NA CTL - Retail
9823012 309 FUNB 0.040% 30/360 NA Leasehold & Fee CTL - Retail
9823026 309 FUNB 0.040% 30/360 NA CTL - Retail
9823028 319 FUNB 0.040% 30/360 NA CTL - Retail
9823030 232 FUNB 0.040% 30/360 NA CTL - Retail
9823031 229 FUNB 0.040% 30/360 NA CTL - Retail
9823032 228 FUNB 0.040% 30/360 NA CTL - Retail
9823033 233 FUNB 0.040% 30/360 NA CTL - Retail
9823035 280 FUNB 0.040% 30/360 NA CTL - Retail
9823042 259 FUNB 0.175% 30/360 NA CTL - Hospitality
9823054 259 FUNB 0.175% 30/360 NA CTL - Hospitality
9823069 259 FUNB 0.175% 30/360 NA CTL - Hospitality
9823072 259 FUNB 0.175% 30/360 NA CTL - Hospitality
9823074 259 FUNB 0.175% 30/360 NA CTL - Hospitality
9823076 259 FUNB 0.175% 30/360 NA CTL - Hospitality
9823082 321 FUNB 0.040% 30/360 NA CTL - Retail
9823094 270 FUNB 0.040% 30/360 NA CTL - Retail
9823097 292 FUNB 0.040% 30/360 NA CTL - Retail
9823098 220 FUNB 0.040% 30/360 NA CTL - Industrial
9823099 229 FUNB 0.040% 30/360 NA CTL - Retail
9823101 229 FUNB 0.040% 30/360 NA CTL - Retail
9823102 228 FUNB 0.040% 30/360 NA CTL - Retail
9823109 319 FUNB 0.040% 30/360 NA CTL - Retail
9823113 234 FUNB 0.040% 30/360 NA CTL - Retail
9823114 235 FUNB 0.040% 30/360 NA CTL - Retail
9823115 235 FUNB 0.040% 30/360 NA CTL - Retail
9823118 177 FUNB 0.040% 30/360 NA CTL - Retail
9823121 290 FUNB 0.040% 30/360 NA CTL - Retail
<CAPTION>
Lease Cut-Off Cross
Control Enhance- Date LTV Collateralized
Number Largest Tenant Name ment RVI DSCR (x) (%) Groups
===============================================================================================================
<S> <C> <C> <C> <C> <C> <C>
9823010 Rite Aid of New Hampshire TRUE 1.00 97.6%
9823012 Rite Aid of Kentucky TRUE 1.00 97.7%
9823026 Rite Aid of California TRUE 1.00 97.4%
9823028 Rite Aid of Oregon TRUE 1.00 98.7%
9823030 Walgreen Company TRUE 1.13 82.5%
9823031 Walgreen Company TRUE 1.00 86.6%
9823032 Walgreen Company TRUE 1.00 86.4%
9823033 White Cross Stores, Inc. TRUE 1.00 97.0%
9823035 Edwards TRUE TRUE 1.13 99.6%
9823042 Motel 6 TRUE 1.00 94.5%
9823054 Motel 6 TRUE 1.00 94.5%
9823069 Motel 6 TRUE 1.00 94.5%
9823072 Motel 6 TRUE 1.00 94.5%
9823074 Motel 6 TRUE 1.00 94.5%
9823076 Motel 6 TRUE 1.00 94.5%
9823082 Rite Aid of Virginia TRUE 1.00 99.0%
9823094 Eckerd TRUE TRUE 1.09 93.2%
9823097 IHOP Properties, Inc. TRUE 1.10 95.1%
9823098 Alliance Paper and Packaging Co., Inc. TRUE TRUE 1.08 92.8%
9823099 CVS Corporation TRUE 1.02 96.2%
9823101 Henrietta CVS, Inc TRUE 1.02 99.1%
9823102 Lowe's Home Centers, Inc TRUE 1.02 87.5%
9823109 Rite Aid of Kentucky TRUE 1.00 98.7%
9823113 Eckerd TRUE 1.00 93.3%
9823114 Rite Aid of Michigan, Inc. TRUE 1.00 93.4%
9823115 Rite Aide of Michigan TRUE 1.00 92.3%
9823118 Sears, Roebuck and Co. TRUE 1.05 81.7%
9823121 Walgreen Company TRUE TRUE 1.22 79.5%
</TABLE>
B-10
<PAGE>
<TABLE>
<CAPTION>
Grace Insured Letter Interest Engin Def Environmental Init TI/LC
Control Semi Mortgage Mortgage of Reserve Maint Escrow Escrow @ Reserve Future TI/LC Reserve
Number Defeased Annual Loan Loan Credit Loan Lockbox ($) @ Close Close (Cleaned) Escrows (Cleaned)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
10000 TRUE TRUE N 1,723.75 0
10003 TRUE TRUE N 620.55 0.00
10004 TRUE TRUE N 930.83 0.00
10019 TRUE TRUE N 0.00 0.00
20007 TRUE TRUE N 0.00 0.00
20022 TRUE N 4,523.75 0.00
20025 TRUE TRUE N 0.00 0.00 14,560.00
20037 TRUE TRUE N 13,837.50 $229,448 LOC
20042 TRUE N 18,725.00 0.00
30013 TRUE FALSE Hard 0.00 0.00
30092 TRUE FALSE Hard 0.00 0.00
9821000 TRUE TRUE N 10,625.00 0.00
9821001 TRUE TRUE N 0.00 0.00
9821002 TRUE TRUE N 6,062.50 0.00
9821003 TRUE TRUE N 11,500.00 0.00
9821004 TRUE TRUE N 9,412.50 0.00
9821005 TRUE TRUE N 0.00 0.00
9821006 TRUE FALSE N 0.00 0.00
9821007 TRUE TRUE N 59,491.25 0.00
9821009 TRUE TRUE N 65,343.75 17,000.00
9821010 FALSE N 0.00 0.00
9821011 TRUE TRUE N 24,287.50 0.00
9821012 TRUE FALSE N 0.00 0.00
9821013 TRUE TRUE N 2,875.00 0.00
9821014 TRUE TRUE N 5,062.50 0.00
9821015 TRUE TRUE N 9,000.00 0.00
9821016 FALSE N 0.00 0.00
9821018 TRUE FALSE N 1,875.00 0.00
9821020 TRUE TRUE N 750.00 0.00
9821021 TRUE N 35,375.00 0.00
9821022 TRUE N 45,693.75 0.00
9821023 TRUE N 10,250.00 0.00
9821024 TRUE N 41,831.25 0.00
9821025 TRUE N 79,931.25 0.00
9821026 TRUE N 4,000.00 1,500.00
9821027 TRUE N 47,625.00 0.00
9821028 TRUE TRUE N 14,556.25 0.00
9821029 TRUE TRUE N 4,250.00 0.00
9821030 TRUE TRUE N 0.00 625.00
9821031 TRUE TRUE N 0.00 0.00
9821034 TRUE TRUE N 14,625.00 0.00
9821037 TRUE TRUE N 0.00 0.00
9821038 TRUE TRUE N 43,125.00 3,750.00
9821039 TRUE TRUE N 0.00 0.00
9821040 TRUE TRUE N 29,756.25 0.00
9821041 TRUE TRUE N 18,750.00 10,250.00
9821042 FALSE N 0.00 0.00
9821044 FALSE N 0.00 0.00
9821045 TRUE TRUE N 85,237.50 0.00
9821046 TRUE N 0.00 0.00
9821048 TRUE TRUE N 76,818.75 0.00
9821049 TRUE TRUE TRUE N 41,656.25 1,500.00
9821050 TRUE TRUE N 17,312.50 0.00
</TABLE>
B-11
<PAGE>
<TABLE>
<CAPTION>
Grace Insured Letter Interest Engin Def Environmental Init TI/LC
Control Semi Mortgage Mortgage of Reserve Maint Escrow Escrow @ Reserve Future TI/LC Reserve
Number Defeased Annual Loan Loan Credit Loan Lockbox ($) @ Close Close (Cleaned) Escrows (Cleaned)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
9821051 TRUE TRUE N 1,843.75 0.00
9821052 TRUE TRUE N 0.00 0.00
9821053 TRUE TRUE N 3,906.25 0.00
9821054 TRUE TRUE N 4,696.25 0.00
9821056 TRUE TRUE N 8,937.50 0.00
9821057 TRUE FALSE N 41,250.00 0.00
9821058 TRUE TRUE N 25,125.00 313.00
9821059 TRUE TRUE N 58,437.50 0.00
9821060 TRUE TRUE N 34,875.00 0.00
9821061 TRUE TRUE N 33,812.50 0.00
9821062 TRUE TRUE N 10,937.50 0.00
9821063 TRUE TRUE N 9,215.00 0.00
9821064 TRUE TRUE N 12,875.00 0.00
9821065 TRUE TRUE N 0.00 0.00
9821066 TRUE TRUE N 15,391.25 0.00
9821067 TRUE TRUE N 77,881.25 0.00
9821068 TRUE N 0.00 0.00
9821069 TRUE TRUE N 1,125.00 0.00
9821071 TRUE TRUE N 11,875.00 0.00
9821072 TRUE TRUE N 5,000.00 0.00
9821074 TRUE TRUE N 8,500.00 0.00
9821075 TRUE TRUE N 7,856.25 0.00
9821076 TRUE TRUE N 10,512.50 0.00
9821081 TRUE TRUE N 9,056.25 0.00
9821082 TRUE TRUE N 7,593.75 0.00
9821097 TRUE TRUE N 22,506.25 0.00
9821098 TRUE TRUE N 66,250.00 312.50
9821099 TRUE TRUE N 12,800.00 0.00
9821100 TRUE TRUE N 4,687.50 0.00
9821101 TRUE TRUE N 6,675.00 0.00
9821102 TRUE TRUE N 10,060.00 0.00
9821103 TRUE FALSE N 8,250.00 0.00
9821104 TRUE FALSE N 5,625.00 0.00
9821105 TRUE FALSE N 63,775.00 0.00
9821107 TRUE TRUE N 42,062.50 0.00
9821109 TRUE N 0.00 0.00
9821111 TRUE TRUE N 40,875.00 1,875.00
9821112 TRUE TRUE N 32,555.00 0.00
9821115 TRUE TRUE N 27,437.50 0.00
9821121 TRUE TRUE N 2,625.00 5,625.00
9821122 TRUE TRUE N 6,591.25 0.00
9821122.1 FALSE 6,591.25 0.00
9821122.2 FALSE 44,347.50 0.00
9821124 TRUE TRUE N 242,283.75 0.00
9821125 TRUE TRUE N 39,111.25 0.00
9821126 TRUE TRUE N 35,647.50 1,250.00
9821130 TRUE TRUE N 124,947.00 0.00
9821133 TRUE TRUE N 11,275.00 0.00
9821142 TRUE TRUE N 0.00 0.00
9821143 TRUE TRUE N 43,636.25 0.00
9821144 TRUE TRUE N 0.00 0.00
9821145 TRUE TRUE N 0.00 0.00
</TABLE>
B-12
<PAGE>
<TABLE>
<CAPTION>
Grace Insured Letter Interest Engin Def Environmental Init TI/LC
Control Semi Mortgage Mortgage of Reserve Maint Escrow Escrow @ Reserve Future TI/LC Reserve
Number Defeased Annual Loan Loan Credit Loan Lockbox ($) @ Close Close (Cleaned) Escrows (Cleaned)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
9821146 TRUE TRUE N 58,125.00 0.00
9821149 TRUE TRUE N 0.00 0.00
9821150 TRUE TRUE N 0.00 0.00
9821151 TRUE TRUE N 0.00 0.00
9821152 TRUE TRUE N 30,313.00 0.00
9821154 TRUE TRUE N 72,375.00 0.00
9821155 TRUE TRUE N 101,038.75 0.00
9821156 TRUE TRUE N 5,000.00 687.50
9822000 TRUE TRUE N 0.00 0.00
9822001 TRUE TRUE N 0.00 0.00
9822003 TRUE TRUE N 0.00 0.00
9822004 TRUE TRUE N 2,375.00 0.00
9822005 TRUE TRUE N 0.00 0.00
9822007 TRUE TRUE N 16,000.00 0.00 100,000.00
9822012 TRUE N 0.00 0.00
9822014 TRUE TRUE N 0.00 0.00
9822015 TRUE N 6,875.00 31,250.00
9822016 TRUE N 83,775.00 1,500,000.00
9822017 TRUE TRUE N 5,250.00 0.00
9822018 TRUE TRUE N 4,962.50 0.00
9822026 TRUE TRUE N 34,932.50 0.00
9822027 TRUE FALSE N 0.00 0.00
9822029 TRUE N 650.00 0.00
9822030 TRUE N 25,937.50 0.00
9822031 TRUE TRUE N 10,250.00 37,500.00 25,749.96
9822032 TRUE N 25,637.50 0.00 200,000.00
9822033 TRUE TRUE N 20,500.00 0.00 1,040,000.00 180,000.00
9822034 TRUE TRUE N 7,610.00 0.00
9822035 TRUE N 9,506.25 0.00
9822036 TRUE TRUE N 20,312.50 0.00
9822037 TRUE N 8,187.50 0.00
9822038 TRUE N 12,362.50 0.00
9822039 TRUE TRUE N 0.00 0.00
9822041 TRUE N 0.00 0.00 82,000.00
9822042 TRUE TRUE N 28,687.50 0.00 500,000.00
9822043 TRUE TRUE N 7,625.00 0.00
9822044 TRUE TRUE N 82,855.00 None 39,900.00
9822045 TRUE TRUE N 1,250.00 0.00 100,000.00
9822046 TRUE N 15,375.00 0.00
9822047 TRUE TRUE N 0.00 0.00
9822048 TRUE TRUE N 18,737.50 0.00
9822049 TRUE TRUE N 13,500.00 0.00
9822050 TRUE TRUE N 0.00 0.00
9822051 TRUE TRUE N 39,093.75 0.00 54,250.00
9822053 TRUE TRUE N 0.00 0.00
9822056 TRUE TRUE N 26,715.00 0.00
9822058 TRUE TRUE N 4,812.50 0.00
9822059 TRUE TRUE N 18,562.50 0.00
9822060 TRUE TRUE N 18,375.00 0.00 39,000.00
9822061 TRUE TRUE N 0.00 0.00
9822062 TRUE TRUE N 22,937.50 0.00
9822063 TRUE TRUE N 220,637.50 0.00 400,000.00 Contingent $400,000
9822064 TRUE TRUE N 34,661.25 0.00 49,200.00
9822065 TRUE TRUE N 0.00 0.00
</TABLE>
B-13
<PAGE>
<TABLE>
<CAPTION>
Grace Insured Letter Interest Engin Def Environmental Init TI/LC
Control Semi Mortgage Mortgage of Reserve Maint Escrow Escrow @ Reserve Future TI/LC Reserve
Number Defeased Annual Loan Loan Credit Loan Lockbox ($) @ Close Close (Cleaned) Escrows (Cleaned)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
9822066 TRUE TRUE N 14,066.25 0.00
9822067 TRUE TRUE N 0.00 0.00
9822068 TRUE TRUE N 11,968.75 0.00
9822069 TRUE TRUE N 0.00 0.00
9822070 TRUE TRUE N 375.00 0.00
9822072 TRUE TRUE N 17,547.50 0.00
9822074 TRUE TRUE N 5,000.00 3,000.00
9822075 TRUE TRUE N 3,125.00 0.00 300,000.00
9822078 TRUE TRUE N 6,812.50 0.00
9822079 TRUE TRUE N 14,506.25 0.00 100,000.00
9822080 TRUE TRUE N 4,062.50 0.00
9822082 TRUE TRUE N 0.00 0.00
9822083 TRUE TRUE N 25,128.75 0.00
9822085 TRUE TRUE N 0.00 0.00
9822087 TRUE N 5,000.00 0.00
9822089 TRUE TRUE N 13,750.00 0.00
9822090 TRUE TRUE N 138,406.25 1,500.00 1,000,000.00
9822091 TRUE FALSE N 0.00 0.00
9822092 TRUE TRUE N 4,000.00 0.00
9822120 TRUE TRUE N 61,557.50 0.00
9822122 TRUE TRUE N 0.00 0.00
9822123 TRUE N 29,593.75 0.00 300,000.00 72,000.00
9822124 TRUE TRUE N 13,406.25 0.00
9822126 TRUE TRUE N 13,768.75 0.00
9822127 TRUE TRUE N 88,750.00 0.00 2,400,000.00 2,220,000.00
9822128 TRUE TRUE N 137,875.00 0.00
9822131 TRUE TRUE N 7,458.75 0.00
9822132 TRUE TRUE N 3,575.00 0.00
9822133 TRUE TRUE N 5,821.25 0.00
9822134 TRUE TRUE N 3,263.75 0.00
9822140 TRUE TRUE N 12,762.50 0.00
9822141 TRUE TRUE N 2,817.50 0.00
9822143 TRUE TRUE N 10,625.00 0.00
9822145 TRUE TRUE N 6,062.50 0.00
9822146 TRUE TRUE N 7,437.50 0.00 400,000.00
9822147 TRUE TRUE N 18,750.00 0.00 250,000.00
9822149 TRUE TRUE N 37,125.00 0.00
9822150 TRUE TRUE N 6,437.50 0.00
9822152 TRUE TRUE N 21,260.00 0.00 400,000.00
9822156 TRUE TRUE N 148,750.00 0.00
9822159 TRUE FALSE N 13,375.00 0.00 170,000.00
9822167 TRUE TRUE N 0.00 0.00
9822174 TRUE TRUE N 12,312.50 0.00
9822176 TRUE TRUE N 3,587.50 0.00
9822183 TRUE TRUE N 812.50 0.00
9822185 TRUE TRUE N 0.00 0.00
9822187 TRUE TRUE N 0.00 15,000.00
9822188 TRUE TRUE N 0.00 0.00
9822189 TRUE TRUE N 18,533.75 NA
9822191 TRUE TRUE N 35,250.00 0.00
9822192 TRUE TRUE N 62,348.75 0.00
9823000 TRUE FALSE Hard 0.00 0.00
9823009 TRUE FALSE Hard 0.00 0.00
</TABLE>
B-14
<PAGE>
<TABLE>
<CAPTION>
Grace Insured Letter Interest Engin Def Environmental Init TI/LC
Control Semi Mortgage Mortgage of Reserve Maint Escrow Escrow @ Reserve Future TI/LC Reserve
Number Defeased Annual Loan Loan Credit Loan Lockbox ($) @ Close Close (Cleaned) Escrows (Cleaned)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
9823010 TRUE FALSE Hard 0.00 0.00
9823012 TRUE FALSE Hard 0.00 0.00
9823026 TRUE FALSE Hard 0.00 0.00
9823028 TRUE FALSE Hard 0.00 0.00
9823030 FALSE Hard 0.00 0.00
9823031 FALSE Hard 1,425.00 0.00
9823032 TRUE FALSE Hard 1,425.00 0.00
9823033 FALSE Hard 0.00 0.00
9823035 TRUE TRUE FALSE Hard 0.00 0.00
9823042 TRUE FALSE Hard 0.00 0.00
9823054 TRUE FALSE Hard 0.00 0.00
9823069 TRUE FALSE Hard 0.00 0.00
9823072 TRUE FALSE Hard 0.00 0.00
9823074 TRUE FALSE Hard 0.00 0.00
9823076 TRUE FALSE Hard 0.00 0.00
9823082 TRUE FALSE Hard 0.00 0.00
9823094 TRUE FALSE Hard 0.00 0.00
9823097 TRUE FALSE Hard 0.00 0.00
9823098 FALSE Hard 0.00 0.00
9823099 TRUE FALSE Hard 0.00 0.00
9823101 TRUE FALSE Hard 0.00 0.00
9823102 FALSE Hard 0.00 0.00
9823109 TRUE FALSE Hard 0.00 0.00
9823113 TRUE FALSE Hard 1,343.75 21,562.50
9823114 TRUE FALSE Hard 0.00 0.00
9823115 TRUE FALSE Hard 0.00 0.00
9823118 FALSE Hard 0.00 0.00
9823121 TRUE FALSE Hard 3,054.00 0.00
</TABLE>
B-15
<PAGE>
<TABLE>
<CAPTION>
Control
Number Other Escrows/Holdbacks/Credit Enhancements (Cleaned)
====================================================================================================================================
<S> <C>
10000
10003
10004
10019
20007 Held back $5,000 until the parking lot was re-surfaced
20022
20025
20037
20042
30013
30092 $18,750 escrowed (125% of estimated amount) for finishing list related to Eckerd occupancy
9821000
9821001
9821002
9821003
9821004
9821005
9821006
9821007
9821009
9821010
9821011
9821012
9821013
9821014
9821015
9821016
9821018
9821020
9821021
9821022
9821023
9821024
9821025
9821026
9821027
9821028
9821029
9821030
9821031
9821034
9821037
9821038
9821039
9821040
9821041
9821042
9821044
9821045
9821046
9821048
9821049 LOC, $780,000, 5 years. DSCR, CLTV and OLTV are net the LOC amount.
9821050
</TABLE>
B-16
<PAGE>
<TABLE>
<CAPTION>
Control
Number Other Escrows/Holdbacks/Credit Enhancements (Cleaned)
====================================================================================================================================
<S> <C>
9821051
9821052
9821053
9821054
9821056
9821057
9821058
9821059
9821060
9821061
9821062
9821063
9821064
9821065
9821066
9821067
9821068
9821069
9821071
9821072
9821074
9821075
9821076
9821081
9821082
9821097
9821098
9821099
9821100
9821101
9821102
9821103
9821104
9821105
9821107
9821109
9821111
9821112
9821115
9821121
9821122
9821122.1
9821122.2
9821124
9821125
9821126
9821130
9821133
9821142
9821143
9821144
9821145
9821146
</TABLE>
B-17
<PAGE>
<TABLE>
<CAPTION>
Control
Number Other Escrows/Holdbacks/Credit Enhancements (Cleaned)
====================================================================================================================================
<S> <C>
9821149
9821150
9821151
9821152
9821154
9821155
9821156
9822000
9822001
9822003
9822004
9822005
9822007
9822012
9822014
9822015
9822016
9822017
9822018
9822026
9822027
9822029
9822030
9822031
9822032
9822033
9822034
9822035
9822036
9822037 $ 1,265,000 held for completion of parking structure
9822038
9822039
9822041 $ 28,762.25 was held until cleaners and Sub shop open for business.
9822042
9822043
9822044
9822045
9822046
9822047
9822048
9822049
9822050
9822051
9822053
9822056
9822058
9822059
9822060
9822061
9822062
9822063
9822064
9822065 $650,000 held back until Dragon House, Jitterbeans, and Hair Cuttery open for business
</TABLE>
B-18
<PAGE>
<TABLE>
<CAPTION>
Control
Number Other Escrows/Holdbacks/Credit Enhancements (Cleaned)
====================================================================================================================================
<S> <C>
9822066
9822067
9822068
9822069
9822070
9822072
9822074
9822075
9822078
9822079
9822080
9822082
9822083
9822085
9822087
9822089
9822090
9822091
9822092
9822120
9822122
9822123
9822124
9822126
9822127
9822128
9822131
9822132
9822133
9822134
9822140
9822141
9822143
9822145
9822146
9822147
9822149
9822150
9822152 A $300,000 Letter of Credit for the JC Penney rollover. LC can be used for TI
9822156 and LC if needed. LC will be released if JC Penney renews.
9822159
9822167
9822174
9822176
9822183
9822185
9822187
9822188
9822189 $575,000 discretionary escrow for Holiday Inn Select upgrade
9822191
9822192
9823000
9823009
</TABLE>
B-19
<PAGE>
<TABLE>
<CAPTION>
Control
Number Other Escrows/Holdbacks/Credit Enhancements (Cleaned)
====================================================================================================================================
<S> <C>
9823010
9823012
9823026
9823028
9823030
9823031
9823032
9823033
9823035
9823042
9823054
9823069
9823072
9823074
9823076
9823082
9823094
9823097
9823098
9823099
9823101
9823102
9823109
9823113
9823114
9823115
9823118
9823121
</TABLE>
B-20
<PAGE>
EXHIBIT C
First Union Commercial Mortgage Trust
FUNB Series 1999-C1
Form of Schedule of Exceptions to Mortgage File Delivery
Control Borrower Document Document Exception
No. Name ID Status Description
- ------- -------- -------- -------- -----------
C-1
<PAGE>
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
_____, 199__
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21044-3562
Attn: First Union Commercial Mortgage Trust, FUNB Series 1999-C1
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by you as
Trustee under a certain Pooling and Servicing Agreement dated as of December 1,
1998 (the "Pooling and Servicing Agreement"), by and among First Union
Commercial Mortgage Securities, Inc., as Depositor, First Union National Bank,
as Master Servicer, Lennar Partners, Inc. as Special Servicer, and you, as
Trustee, the undersigned hereby requests a release of the Mortgage File (or the
portion thereof specified below) held by you with respect to the following
described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
D-1-1
<PAGE>
________ 1. Mortgage Loan paid in full.
The Master Servicer hereby certifies that all amounts received in
connection with the Mortgage Loan that are required to be
credited to the Certificate Account pursuant to the Pooling and
Servicing Agreement, have been or will be so credited.
________ 2. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten (10) days of our receipt thereof, unless the Mortgage
Loan has been paid in full, in which case the Mortgage File (or such portion
thereof) will be retained by us permanently.
D-1-2
<PAGE>
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
First Union National Bank,
as Master Servicer
By:
-------------------------------------
Name:
Title:
D-1-3
<PAGE>
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
_____, 199__
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21044-3562
Attn: First Union Commercial Mortgage Trust, FUNB Series 1999-C1
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by you as
Trustee under a certain Pooling and Servicing Agreement dated as of December 1,
1998 (the "Pooling and Servicing Agreement"), by and among First Union
Commercial Mortgage Securities, Inc., as depositor, First Union National Bank,
as Master Servicer, Lennar Partners, Inc., as Special Servicer, and you, as
Trustee, the undersigned hereby requests a release of the Mortgage File (or the
portion thereof specified below) held by you with respect to the following
described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
________ 1. The Mortgage Loan is being foreclosed.
D-2-1
<PAGE>
________ 2. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten (10) days of our receipt thereof, unless the Mortgage
Loan is being foreclosed, in which case the Mortgage File (or such portion
thereof) will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
LENNAR PARTNERS, INC.
as Special Servicer
By:
-------------------------------------
Name:
Title:
D-2-2
<PAGE>
EXHIBIT E
CALCULATION OF NOI/DEBT SERVICE COVERAGE RATIOS
"Net Operating Income" shall mean the revenue derived from the use and
operation of a Mortgaged Property less operating expenses (such as utilities,
administrative expenses, repairs and maintenance, tenant improvement costs,
leasing commissions, management fees and advertising), fixed expenses (such as
insurance, real estate taxes and, if applicable, ground lease payments) and
reserves (such as reserves for tenant improvements and leasing commissions in
the case of Rental Properties and assumed reserves for ongoing capital
expenditures). Net cash flow does not reflect interest expenses and non-cash
items such as depreciation and amortization, and generally does not reflect
capital expenditures, but does reflect reserves for replacements.
In determining the "revenue" component of Net Operating Income for each
Rental Property, the Special Servicer shall rely on the most recent rent roll
supplied by the related borrower and where the actual vacancy shown thereon and
the market vacancy is less than 5%, the Special Servicer shall assume a 5%
vacancy in determining revenue from rents, except that in the case of certain
anchored shopping centers, space occupied by anchor tenants shall be disregarded
in performing the vacancy adjustment due to the length of the related leases or
creditworthiness of such tenants, in accordance with the respective Mortgage
Loan Seller's underwriting standards. In determining rental revenue for
multifamily properties, the Special Servicer shall either review rental revenue
shown on the rolling 12-month operating statements or annualize the rental
revenue shown on rent rolls or operating statements with respect to the prior
three to twelve month periods. For the other Rental Properties, the Special
Servicer shall annualize rental revenue shown on the most recent rent roll,
after applying the vacancy factor, without further regard to the terms
(including expiration dates) of the leases shown thereon. In the case of
hospitality properties, gross receipts shall be determined on the basis of
adjusted average daily occupancy shown on the borrower-supplied operating
statements. In the case of residential health care facilities, receipts shall be
based on historical occupancy levels, historical operating revenues and the then
current occupancy rates. Private occupancy rates shall be within current market
ranges and vacancy levels shall be at a minimum of 5%. In general, any
non-recurring items and non-property related revenue shall be eliminated from
the calculation except in the case of residential health care facilities.
In determining the "expense" component of Net Operating Income for each
Mortgaged Property, the Special Servicer shall rely on the most recent financial
statements supplied by the related borrower, except that (a) if tax or insurance
expense information more current than that reflected in the financial statements
is available, the newer information shall be annualized and used, (b) with
respect to
E-1
<PAGE>
each Mortgaged Property, property management fees shall be assumed to be 4% to
5% of effective gross revenue (except with respect to hospitality properties,
where a minimum of 5% of gross receipts shall be assumed) unless actual
management fees are higher, in which case actual management fees shall be
assumed, (c) assumptions shall be made with respect to reserves for leasing
commission, tenant improvement expenses and capital expenditures and (d)
expenses shall be assumed to include annual replacement reserves equal to (1) in
the case of retail, office, industrial and two mixed use multifamily/retail
properties, not less than $0.04 and not more than $0.77 per square foot net
rentable commercial area, (2) in the case of multifamily and three mixed use
multifamily/retail properties, not less than $150 or more than $350 per
residential unit per year, depending on the condition of the property, (3) in
the case of hospitality properties, 4% of the gross revenues received by the
property owner on an ongoing basis, (4) in the case of residential healthcare
facilities, $225 to $300 per bed per year and (5) in the case of the mobile home
parks, not less than $31 or more than $79 per pad per year. In addition, in some
instances, the Special Servicer may recharacterize as capital expenditures those
items reported by borrowers as operating expenses (thus increasing "net
operating income") where determined appropriate.
E-2
<PAGE>
EXHIBIT F
FORM OF TRANSITION SUPPLEMENT
This TRANSITION SUPPLEMENT, dated as of February 1, 1999 (the "Transition
Date"), is delivered by FIRST UNION COMMERCIAL MORTGAGE SECURITIES, INC. (the
"Depositor") as Depositor pursuant to Section 2.11(a) of the pooling and
servicing agreement, dated and effective as of December 1, 1998 (the "Pooling
and Servicing Agreement"), among the Depositor, FIRST UNION NATIONAL BANK, as
Master Servicer, LENNAR PARTNERS, INC., as Special Servicer, and NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, as Trustee. Capitalized terms used and not
otherwise defined herein shall have the meanings assigned to such terms in the
Pooling and Servicing Agreement.
The Depositor hereby certifies that each of the conditions set forth in
Section 2.11(a) of the Pooling and Servicing Agreement have been satisfied as of
the date hereof.
The "REMIC IV Remittance Rate" for each of REMIC IV P&I Regular Interests
A-1, A-2, B, C, D and E as of the Transition Date and for any Distribution Date
after the Distribution Date to occur in February 1999 shall be:
(i) with respect to REMIC IV P&I Regular Interest A-1, 5.73%;
(ii) with respect to REMIC IV P&I Regular Interest A-2, 6.07%;
(iii) with respect to REMIC IV P&I Regular Interest B, 6.22%;
(iv) with respect to REMIC IV P&I Regular Interest C, the Weighted Average
REMIC I Remittance Rate minus 0.51%;
(v) with respect to REMIC IV P&I Regular Interest D, the Weighted Average
REMIC I Remittance Rate minus 0.03%; and
(vi) with respect to REMIC IV P&I Regular Interest E, the Weighted Average
REMIC I Remittance Rate minus 0.03%.
FIRST UNION COMMERCIAL MORTGAGE
SECURITIES, INC., as Depositor
By:
-------------------------------------
Name: Craig Lieberman
Title: Vice President
Dated: February 1, 1999
F-1
<PAGE>
EXHIBIT G-1
FORM OF TRANSFEROR CERTIFICATE
______ __, 199_
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21044-3562
Attn: First Union Commercial Mortgage Trust, FUNB Series 1999-C1
Re: First Union Commercial Mortgage Trust Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, FUNB Series 1999-C1,
Class (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
principal balance as of December 23, 1998 (the "Closing Date") of $_____________
evidencing a __% percentage interest in the Class to which it belongs. The
Certificates were issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of December 1, 1998, among First
Union Commercial Mortgage Securities, Inc., as depositor, First Union National
Bank, as master servicer, Lennar Partners, Inc., as special servicer and Norwest
Bank Minnesota, National Association, as trustee. All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificate
with the full right to transfer such Certificate free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accepted a
transfer, pledge or other disposition of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) made any general
G-1-1
<PAGE>
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of any
Certificate under the Securities Act of 1933 (the "Securities Act"), or
would render the disposition of any Certificate a violation of Section 5 of
the Securities Act or any state securities laws, or would require
registration or qualification of any Certificate pursuant to the Securities
Act or any state securities laws.
Very truly yours,
----------------------------------------
(Transferor)
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
G-1-2
<PAGE>
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE
FOR QIBs
______ __, 199_
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21044-3562
Attn: First Union Commercial Mortgage Trust, FUNB Series 1999-C1
Re: First Union Commercial Mortgage Trust Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, FUNB Series
1999-C1, Class (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
principal balance as of December 23, 1998 (the "Closing Date") of $_____________
evidencing a __% percentage interest in the Class to which it belongs. The
Certificates were issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of December 1, 1998, among First
Union Commercial Mortgage Securities, Inc., as depositor, First Union National
Bank, as master servicer, Lennar Partners, Inc., as special servicer and Norwest
Bank Minnesota, National Association, as trustee. All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933 (the
"Securities Act") and has completed one of the forms of certification to
that effect attached hereto as Annex 1 and Annex 2. The Transferee is aware
that the sale to it is being made in reliance on Rule 144A. The Transferee
is acquiring the Transferred Certificate for its own account or for the
account of a qualified institutional buyer, and understands that such
Certificate may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases
for its own account or for the account of a qualified institutional buyer
to whom notice is given that the resale, pledge or transfer is being
G-2-1
<PAGE>
made in reliance on Rule 144A, or (ii) pursuant to another exemption from
registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Certificates and distributions thereon, (b) the nature, performance
and servicing of the Mortgage Loans, (c) the Pooling and Servicing
Agreement, and (d) any credit enhancement mechanism associated with the
Certificates, that it has requested.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except
in compliance with the provisions of Section 5.02 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed, and that
the Transferred Certificate will bear legends substantially to the
following effect:
THE CERTIFICATE HAS NOT BEEN AND WILL NOT BE 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
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
- AND -
[NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF
1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE
OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.]
- OR -
[NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE
(A) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS AND COLLECTIVE
INVESTMENT FUNDS AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR
ARRANGEMENTS ARE INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE
CODE OF 1986 (THE "CODE") (ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT, A "PLAN"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
G-2-2
<PAGE>
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS
OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS"
OF A PLAN) PROVIDED THAT (I) SUCH A TRANSFER MAY BE MADE TO AN INSURANCE
COMPANY GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE
RELIEF UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60
("PTE 95-60"), AND (ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE
95-60 ARE SATISFIED WITH RESPECT TO SUCH TRANSFER, AND (II) SUCH A TRANSFER
MAY BE MADE WITH RESPECT TO A CLASS H CERTIFICATE IF THE TRANSFEREE
PROVIDES THE CERTIFICATE REGISTRAR WITH A CERTIFICATION OF FACTS AND AN
OPINION THAT ESTABLISH TO THE REASONABLE SATISFACTION OF THE CERTIFICATE
REGISTRAR THAT SUCH TRANSFER WILL NOT RESULT IN A VIOLATION OF SECTION 406
OF ERISA OR SECTION 4975 OF THE CODE OR RESULT IN THE IMPOSITION OF AN
EXCISE TAX UNDER SECTION 4975 OF THE CODE.]
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accept a
pledge, disposition or other transfer of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) made any general solicitation by means
of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a)
through (e) above) would constitute a distribution of any Certificate under
the Securities Act, would render the disposition of any Certificate a
violation of Section 5 of the Securities Act or any state securities law or
would require registration or qualification of any Certificate pursuant
thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to any Certificate.
G-2-3
<PAGE>
Very truly yours,
----------------------------------------
(Transferee)
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
G-2-4
<PAGE>
ANNEX 1 TO EXHIBIT G-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and Norwest Bank Minnesota, National Association, as Certificate
Registrar, with respect to the mortgage pass-through certificate being
transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933 ("Rule 144A") because (i)
the Transferee owned and/or invested on a discretionary basis $_____________/
__________________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) [Transferee must own
and/or invest on a discretionary basis at least $100,000,000 in securities
unless Transferee is a dealer, and, in that case, Transferee must own and/or
invest on, a discretionary basis at least $10,000,000 in securities.] and (ii)
the Transferee satisfies the criteria in the category marked below.
o Corporation, etc. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), business trust,
partnership, or any organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986.
o Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of
which is attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a U.S.
bank, and not more than 18 months preceding such date of sale for a
foreign bank or equivalent institution.
G-2-5
<PAGE>
o Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised and
examined by a State or Federal authority having supervision over any
such institutions or is a foreign savings and loan association or
equivalent institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements,
a copy of which is attached hereto, as of a date not more than 16
months preceding the date of sale of the Certificate in the case of a
U.S. savings and loan association, and not more than 18 months
preceding such date of sale for a foreign savings and loan association
or equivalent institution.
o Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
o Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State, U.S. territory or the District
of Columbia.
o State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
o ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
o Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940.
o Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.) _______________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the
G-2-6
<PAGE>
Transferee, (ii) securities that are part of an unsold allotment to or
subscription by the Transferee, if the Transferee is a dealer, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, the Transferee did not include any of the
securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market. Further,
in determining such aggregate amount, the Transferee may have included
securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the parties to which this certification is being made are
relying and will continue to rely on the statements made herein because one or
more sales to the Transferee may be in reliance on Rule 144A.
--- --- Will the Transferee be purchasing the
Yes No Transferred Certificate only for the
Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings
G-2-7
<PAGE>
and loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become available.
------------------------
Print Name of Transferee
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
----------------------------------
Date:
-----------------------------------
G-2-8
<PAGE>
ANNEX 2 TO EXHIBIT G-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and Norwest Bank Minnesota, National Association, as Certificate
Registrar, with respect to the mortgage pass-through certificate being
transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933 ("Rule 144A") because the Transferee is
part of a Family of Investment Companies (as defined below), is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
o The Transferee owned and/or invested on a discretionary basis
$___________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
o The Transferee is part of a Family of Investment Companies which owned
in the aggregate $ _____________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
G-2-9
<PAGE>
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
--- --- Will the Transferee be purchasing the
Yes No Transferred Certificate only for the
Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificate will constitute
a reaffirmation of
G-2-10
<PAGE>
this certification by the undersigned as of the date of such purchase.
-----------------------------------
Print Name of Transferee or Adviser
-----------------------------------
By:
--------------------------------
Name:
Title:
-----------------------------
IF AN ADVISER:
-----------------------------------
Print Name of Transferee
Date:
------------------------------
G-2-11
<PAGE>
EXHIBIT G-3
FORM OF TRANSFEREE CERTIFICATE
FOR NON-QIBs
______ __, 199_
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21044-3562
Attn: First Union Commercial Mortgage Trust, FUNB Series 1999-C1
Re: First Union Commercial Mortgage Trust Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, FUNB Series 1999-C1,
Class (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ by (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
principal balance as of December 23, 1998 (the "Closing Date") of $_____________
evidencing a __% percentage interest in the Class to which it belongs. The
Certificates were issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of December 1, 1998, among First
Union Commercial Mortgage Securities, Inc., as depositor (the "Depositor"),
First Union National Bank, as master servicer, Lennar Partners, Inc., as special
servicer and Norwest Bank Minnesota, National Association, as trustee. All terms
used herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificate for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not been and
will not be registered under the Securities Act or registered or qualified under
any applicable state securities laws, (b) neither the Depositor nor the Trustee
or the Certificate Registrar is obligated so to register or qualify the
Certificates and (c) the Certificates may not be resold or transferred unless
they are (i) registered pursuant to
G-3-1
<PAGE>
the Securities Act and registered or qualified pursuant to any applicable state
securities laws or (ii) sold or transferred in transactions which are exempt
from such registration and qualification and the Certificate Registrar has
received either (A) certifications from both the transferor and the transferee
(substantially in the forms attached to the Pooling and Servicing Agreement)
setting forth the facts surrounding the transfer or (B) an opinion of counsel
satisfactory to the Certificate Registrar with respect to the availability of
such exemption (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with copies of the certification(s) from the Transferor and/or Transferee
setting forth the facts surrounding the transfer upon which such opinion is
based. Any holder of a Certificate desiring to effect such a transfer shall, and
upon acquisition of such Certificate shall be deemed to have agreed to,
indemnify the Trustee, the Certificate Registrar and the Depositor 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.
3. The Transferee understands that it may not sell or otherwise transfer
any portion of its interest in the Transferred Certificate except in compliance
with the provisions of Section 5.02 of the Pooling and Servicing Agreement,
which provisions it has carefully reviewed, and that the Transferred Certificate
will bear legends substantially to the following effect:
THE CERTIFICATE HAS NOT BEEN AND WILL NOT BE 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 POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
- AND -
[NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986
(THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS
OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.]
- OR -
[NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO
ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
G-3-2
<PAGE>
ARRANGEMENT, INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, KEOGH PLANS
AND COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS,
ACCOUNTS OR ARRANGEMENTS ARE INVESTED, THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE") (ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT, A "PLAN"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF, AS
NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF A PLAN (INCLUDING, WITHOUT
LIMITATION, ANY INSURANCE COMPANY USING ASSETS IN ITS GENERAL OR SEPARATE
ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A PLAN) PROVIDED THAT (I) SUCH A
TRANSFER MAY BE MADE TO AN INSURANCE COMPANY GENERAL ACCOUNT IF (i) THIS
CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER SECTION III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND (ii) THE CONDITIONS OF
SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH RESPECT TO SUCH TRANSFER,
AND (II) SUCH A TRANSFER MAY BE MADE WITH RESPECT TO A CLASS H CERTIFICATE IF
THE TRANSFEREE PROVIDES THE CERTIFICATE REGISTRAR WITH A CERTIFICATION OF FACTS
AND AN OPINION THAT ESTABLISH TO THE REASONABLE SATISFACTION OF THE CERTIFICATE
REGISTRAR THAT SUCH TRANSFER WILL NOT RESULT IN A VIOLATION OF SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE OR RESULT IN THE IMPOSITION OF AN EXCISE TAX
UNDER SECTION 4975 OF THE CODE.]
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) solicited any offer to buy or accept a pledge, disposition or other
transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of any
Certificate under the Securities Act, would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of any Certificate
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to any Certificate.
5. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Certificates and distributions thereon, (c) the Pooling and
Servicing Agreement, and (d) all related matters, that it has requested.
6. The Transferee is an "accredited investor" as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities
G-3-3
<PAGE>
Act and has such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of an investment in the
Certificates; the Transferee has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision; and the
Transferee is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
Very truly yours,
-----------------------------------
(Transferee)
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
G-3-4
<PAGE>
EXHIBIT H
FORM OF TRANSFEREE LETTER
_____ __, 199_
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21044-3562
Attn: First Union Commercial Mortgage Trust, FUNB Series 1999-C1
Re: First Union Commercial Mortgage Trust, Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, FUNB Series 1999-C1,
Classes (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of the Class ______________ Certificates (the "Transferred
Certificate") (having principal balances as of December 23, 1998 (the "Closing
Date") of $_____________ evidencing a __% interest in the Classes to which they
belong]. The Certificates were issued pursuant to a Pooling and Servicing
Agreement, dated as of December 1, 1998 (the "Pooling and Servicing Agreement"),
among First Union Commercial Mortgage Securities, Inc., as depositor, First
Union National Bank, as master servicer, Lennar Partners, Inc., as special
servicer and Norwest Bank Minnesota, National Association, as trustee (the
"Trustee"). Capitalized terms used but not defined herein shall have the
meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you that:
Either: (1) the Transferee is not an employee benefit plan within the
meaning of section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA") (a "Plan"), or a plan within the meaning of section
4975(e)(1) of the Internal Revenue Code of 1986, as amended (the "Code") (also,
a "Plan"), and the Transferee is not directly or indirectly purchasing the
Transferred Certificate on behalf of, as investment manager of, as named
fiduciary of, as trustee of, or with assets of a Plan (including any insurance
company using assets in its general or separate account that may constitute
assets of a Plan); or (2) the Transferee's purchase of the Transferred
Certificate will not result in a prohibited transaction under section 406 of
ERISA or section 4975 of the Code or subject the Master Servicer, the Special
Servicer or the
H-1
<PAGE>
Trustee to any obligation in addition to those undertaken in the Pooling and
Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of the
date first written above.
[Name of Transferee]
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
H-2
<PAGE>
EXHIBIT I-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(d)(i)(B)
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
[NAME OF OFFICER], being first duly sworn, deposes, and represents and
warrants:
1. That he is a [Title of Officer] of [Name of Owner] (the "Owner"), a
corporation duly organized and existing under the laws of the [State of
___________] [the United States], and the owner of the First Union
Commercial Mortgage Securities, Inc., Commercial Mortgage Pass-Through
Certificates, FUNB Series 1999-C1, Class [R-I, R-II, R-III] evidencing a
___% Percentage Interest (the "Class [R-I, R-II, R-III] Certificates").
Capitalized terms used but not defined herein have the meanings assigned to
such terms in the Pooling and Servicing Agreement dated as of December 1,
1998, among First Union Commercial Mortgage Securities, Inc., as Depositor,
First Union National Bank as Master Servicer, Lennar Partners, Inc., as
Special Servicer and Norwest Bank Minnesota, National Association.
2. That the Owner (i) is and will be a "Permitted Transferee" as of
_____ _, 199_ and (ii) is acquiring the Class [R-I, R-II, R-III]
Certificates for its own account or for the account of another Owner 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, a "disqualified organization" means any of the following: (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 of the FHLMC, a majority of
its board of directors is not selected by such governmental unit), (ii) a
foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which
is exempt from the tax imposed by Chapter 1 of the Code (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
I-1-1
<PAGE>
1381(a)(2)(C) of the Code and (v) any other Person so designated by the
Trustee based upon an Opinion of Counsel that the holding of an Ownership
Interest in a Class [R-I, R-II, R-III] 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 Class [R-I, R-II, R-III] 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 from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the United States, 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
of the Code.
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of the Class [R-I, R-II, R-III] Certificates to disqualified
organizations under the Code that applies to all transfers of the Class
[R-I, R-II, R-III] Certificates after March 31, 1988; (ii) that such tax
would be on the transferor, or, if such transfer is through an agent (which
person includes a broker, nominee or middleman) for a disqualified
organization Transferee, 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
Class [R-I, R-II, R-III] Certificates may be "noneconomic residual
interests" within the meaning of Treasury regulation section 1.860E-1(c)(2)
and that the transferor of a "noneconomic 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. That the Owner is aware of the tax imposed on a "pass-through
entity" holding the Class [R-I, R-II, R-III] Certificates if at any time
during the taxable year of the
I-1-2
<PAGE>
pass-through entity a non-Permitted Transferee 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. That the Owner is aware that the Certificate Registrar will not
register the transfer of any Class [R-I, R-II, R-III] Certificate unless
the transferee, or the transferee's agent, delivers to the Trustee, among
other things, an affidavit in substantially the same form as this
affidavit. The Owner expressly agrees that it will not consummate any such
transfer if it knows or believes that any of the representations contained
in such affidavit and agreement are false.
6. That the Owner 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 Class [R-I, R-II,
R-III] Certificates will only be owned, directly or indirectly, by
Permitted Transferees.
7. That the Owner's taxpayer identification number is _____________.
8. That the Owner has reviewed the restrictions set forth on the face
of the Class [R-I, R-II, R-III] Certificates and the provisions of Section
5.02 of the Pooling and Servicing Agreement under which the Class [R-I,
R-II, R-III] Certificates were issued (and, in particular, the Owner is
aware that such Section authorizes the Trustee to deliver payments to a
person other than the Owner and negotiate a mandatory sale by the Trustee
in the event that the Owner holds such Certificate in violation of Section
5.02); and that the Owner expressly agrees to be bound by and to comply
with such restrictions and provisions.
9. That the Owner is not acquiring and will not transfer the Class
[R-I, R-II, R-III] Certificates in order to impede the assessment or
collection of any tax.
10. That the Owner anticipates that it will, so long as it holds any
of the Class [R-I, R-II, R-III] Certificates, have sufficient assets to pay
any taxes owed by the holder of such Class [R-I, R-II, R-III] Certificates.
11. That the Owner has no present knowledge that it may become
insolvent or subject to a bankruptcy proceeding for so long as it holds any
of the Class [R-I, R-II, R-III] Certificates.
I-1-3
<PAGE>
12. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of
the Certificates remain outstanding. In this regard, the Owner hereby
represents to and for the benefit of the Person from whom it acquired the
Class [R-I, R-II, R-III] Certificates that the Owner intends to pay taxes
associated with holding the Class [R-I, R-II, R-III] Certificates as they
become due, fully understanding that it may incur tax liabilities in excess
of any cash flows generated by the Class [R-I, R-II, R-III] Certificates.
13. That the Owner is not acquiring the Class [R-I, R-II, R-III]
Certificates with the intent to transfer any of the Class [R-I, R-II,
R-III] Certificates to any person or entity that will not have sufficient
assets to pay any taxes owed by the holder of such Class [R-I, R-II, R-III]
Certificates, or that may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class [R-I, R-II, R-III] Certificates remain
outstanding.
14. That Owner will, in connection with any transfer that it makes of
the Class [R-I, R-II, R-III] Certificates, obtain from its transferee the
representations required by Section 5.02(d) of the Pooling and Servicing
Agreement under which the Class [R-I, R-II, R-III] Certificates were issued
and will not consummate any such transfer if it knows, or knows facts that
should lead it to believe, that any such representations are false.
15. That Owner will, in connection with any transfer that it makes of
any Class [R-I, R-II, R-III] Certificate, deliver to the Certificate
Registrar an affidavit, which represents and warrants that it is not
transferring such Class [R-I, R-II, R-III] Certificate to impede the
assessment or collection of any tax and that it has no actual knowledge
that the proposed transferee: (i) has insufficient assets to pay any taxes
owed by such transferee as holder of such Class [R-I, R-II, R-III]
Certificate; (ii) may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class [R-I, R-II, R-III] Certificates remain
outstanding; and (iii) is not a "Permitted Transferee".
I-1-4
<PAGE>
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed on
its behalf, by its [Title of Officer] and Authorized Signatory, attested by its
Assistant Secretary, this ____ day of _____, 199_.
[NAME OF OWNER]
By:
-------------------------------------
[Name of Officer]
[Title of Officer]
- -------------------------------
[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 [Title of Officer], and acknowledged to me that he executed the same as his
free act and deed and the free act and deed of the Owner.
Subscribed and sworn before me this ____ day of _____ 199.
/s/
------------------------------------
NOTARY PUBLIC
COUNTY OF ______________
STATE OF _______________
My Commission expires the
____ day of ___________, 19__.
I-1-5
<PAGE>
EXHIBIT I-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(d)(i)(D)
_____, 199__
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21044-3562
Attn: First Union Commercial Mortgage Trust, FUNB Series 1999-C1
Re: First Union-Lehman Brothers, Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, FUNB Series
1999-C1, Class [R-I, R-II, R-III], evidencing a ____%
percentage interest in the Class to which they belong
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, R-II, R-III] Certificates (the "Class [R-I, R-II, R-III]
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of December 1, 1998, among
First Union Commercial Mortgage Securities, Inc., as depositor, First Union
National Bank, as master servicer, Lennar Partners, Inc., as special servicer,
Norwest Bank Minnesota and National Association, as trustee. All terms used
herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby represents and warrants
to you, as Certificate Registrar, that:
I-2-1
<PAGE>
1. No purpose of the Transferor relating to the transfer of the Class
[R-I, R-II, R-III] Certificates by the Transferor to the Transferee is or
will be to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you
a Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit I-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 regulation 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 Class [R-I, R-II, R-III] Certificates
may not be respected for United States income tax purposes (and the
Transferor may continue to be liable for United States income taxes
associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
By:
-------------------------------------
Name:
Title:
I-2-2
<PAGE>
EXHIBIT J-1
FORM OF NOTICE AND ACKNOWLEDGMENT
_____, 199__
Moody's Investors Service, Inc.
99 Church Street
New York, New York
Standard & Poor's Ratings Services,
a division of the McGraw Hill
Companies, Inc.
25 Broadway
New York, New York 10004
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the Pooling and
Servicing Agreement dated as of December 1, 1998 relating to First Union
Commercial Mortgage Trust, Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, FUNB Series 1999-C1 (the "Agreement"). Any term with
initial capital letters not otherwise defined in this notice has the meaning
given such term in the Agreement.
Notice is hereby given that the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class have designated
___________________ to serve as the Special Servicer under the Agreement.
The designation of ____________________ as Special Servicer will become
final if certain conditions are met and on the date you will deliver to Norwest
Bank Minnesota, National Association, the trustee under the Agreement (the
"Trustee"), a written confirmation stating that the appointment of the person
designated to become the Special Servicer will not result in the qualification,
downgrading or withdrawal of the rating or ratings assigned to one or more
Classes of the Certificates.
J-1-1
<PAGE>
Please acknowledge receipt of this notice by signing the enclosed copy of
this notice where indicated below and returning it to the Trustee, in the
enclosed stamped self-addressed envelope.
Very truly yours,
Norwest Bank Minnesota, National
Association
By:
-------------------------------------
Title:
---------------------------------------
J-1-2
<PAGE>
Receipt acknowledged:
Moody's Investor Service, Inc. Standard & Poor's Ratings
Services, a division of the
McGraw Hill Companies, Inc.
By:_________________ By:_________________
Title:______________ Title:______________
Date:_______________ Date:_______________
J-1-3
<PAGE>
EXHIBIT J-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
_____, 199__
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21044-3562
Attn: First Union Commercial Mortgage Trust, FUNB Series 1999-C1
Ladies & Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement dated as of
December 1, 1998 relating to First Union Commercial Mortgage Trust Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, FUNB Series
1999-C1 (the "Agreement"), the undersigned hereby agrees with all the other
parties to the Agreement that the undersigned shall serve as Special Servicer
under, and as defined in, the Agreement. The undersigned hereby acknowledges
that, as of the date hereof, it is and shall be a party to the Agreement and
bound thereby to the full extent indicated therein in the capacity of Special
Servicer. The undersigned hereby makes, as of the date hereof, the
representations and warranties set forth in Section 3.23(b) as if it were the
Special Servicer thereunder.
------------------------------
By:
---------------------------
Name:
-------------------------
Title:
------------------------
J-2-1
<PAGE>
EXHIBIT K
Reserved
K-1
<PAGE>
EXHIBIT L
Form of Schedule of Certificateholders
Initial
Class Certificate Balance Name of Holder Address
- ----- ------------------- -------------- -------
L-1
<PAGE>
EXHIBIT M
Form of CSSA Property File Report
<TABLE>
<CAPTION>
1 2 3 4 5 6 7
Tran ID Loan ID Prosup Other Prop ID Distrib Crossed Collateralized
Loan ID ID Date Loan Grouping Property Name
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
1 8 9 10 11 12
Tran ID Zip County
Address City State Code
===============================================================
<S> <C> <C> <C> <C> <C> <C>
<CAPTION>
1 13 14 15 16 17 18 19
Tran ID Prop Year Year Net SF # of Units/Beds/Rooms Prop Alloc. % of Loan
Type Code Built Renovated At Securitzn At Securitization Stat At Securitization
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
1 20 21 22 23 24 25
Tran ID Current Current Alloc. Ground Other Escrow/ Most Recent Most Recent
Alloc. % Loan Amount Lease Reserve Balances Appraisal Date Appraisal Value
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
<CAPTION>
1 26 27 28 29 30 31 32
Tran ID Date Asset To Foreclosure REO Date Occ. % Occ. Date Date Lease % SF expire
Be Resolved Date Rollover Review 1-12 mo.
==================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
1 33 34 35 36 37 38
Tran ID % SF expire % SF expire % SF expire % SF expire Largest Tenant SF Largest
13-24 mo. 25-36 mo. 37-48 mo. 49-60 mo. Tenant
=================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
<CAPTION>
1 39 40 41 42 43
Tran ID 2nd Largest Tenant SF 2nd Largest 3rd Largest Tenant SF 3rd Largest Fiscal Year
Tenant Tenant End Month
=================================================================================================================================
<S> <C> <C> <C> <C> <C>
<CAPTION>
1 44 45 46 47 48
Tran ID Securization Finan. Revenue At Oper. Exp. At NOI At DSCR At
As of Date Securitization Securitization Securitization Securitization
===================================================================================================================================
<S> <C> <C> <C> <C> <C>
<CAPTION>
1 49 50 51
Tran ID Appraisal Value Appraisal Date Physical Occup
Securitization Securitization At Securitization
===========================================================================================
<S> <C> <C> <C>
<CAPTION>
1 52 53 54 55 56 57
Tran ID Date of Last Preceding FY Preceding FY Preceding FY Preceding FY Preceding FY
Inspection Fin. as of Date Revenue Expenses NOI Debt Service
================================================================================================================================
<S> <C> <C> <C> <C> <C> <C>
<CAPTION>
1 58 59 60 61 62 63 64
Tran ID Preceding FY Preceding FY 2nd Preceding 2nd Preceding 2nd Preceding 2nd Preceding 2nd Preceding
DSCR Occupancy FY Fin as of Date FY Revenue FY Expenses FY NOI FY Debt Service
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
<CAPTION>
1 65 66 67 68 69
Tran ID 2nd Preceding 2nd Preceding Most Recent Most Recent Most Recent
FY DSCR FY Occup % FY Fin as of Date FY Revenue FY Expenses
==========================================================================================================================
<S> <C> <C> <C> <C> <C>
<CAPTION>
1 70 71 72 73
Tran ID Most Recent Most Recent Most Recent Most Recent
FY NOI FY Debt Service FY DSCR FY Occup. %
===================================================================================================
<S> <C> <C> <C> <C>
</TABLE>
M-1
<PAGE>
EXHIBIT N
FIRST UNION
Commercial Mortgage Trust, FUNB Series 1999-C1
COMPARATIVE FINANCIAL STATUS REPORT
as of ____________________
<TABLE>
<CAPTION>
ORIGINAL UNDERWRITING
- ---------------------------------------------------------------------------------------------------------------
INFORMATION
- ---------------------------------------------------------------------------------------------------------------
BASIS YEAR
- ---------------------------------------------------------------------------------------------------------------
Last
Property Scheduled Paid Annual Financial
Prospectus Inspect Loan Thru Debt Info as of % Total $ (1)
ID City State Date Balance Date Service Date Occ Revenue NOI DSCR
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
List all loans currently in deal with or without information largest to smallest loan
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
Total: $ $ WA $ $ WA
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
===============================================================================================================
RECEIVED
- ---------------------------------------------------------------------------------------------------------------
FINANCIAL INFORMATION: LOANS BALANCE
- ---------------------------------------------------------------------------------------------------------------
# % $ %
- ---------------------------------------------------------------------------------------------------------------
CURRENT FULL YEAR:
- ---------------------------------------------------------------------------------------------------------------
CURRENT FULL YR. RECEIVED WITH DSC LESS THAN 1:
- ---------------------------------------------------------------------------------------------------------------
PRIOR FULL YEAR:
- ---------------------------------------------------------------------------------------------------------------
PRIOR FULL YR. RECEIVED WITH DSC LESS THAN 1:
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
<FN>
(1) DSCR should match to Operating Statement and is normally calculated using NOI/Debt Service.
(2) Net change should compare the latest year to the underwriting year.
</FN>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
2ND PRECEDING ANNUAL OPERATING PRECEDING ANNUAL OPERATING
INFORMATION INFORMATION
AS OF ___________ NORMALIZED AS OF ___________ NORMALIZED
- ---------------------------------------------------------------------------------------------------------------
Last Last
Property Financial Property Financial
Prospectus Inspect Info as of % Total Normalized (1) Inspect Info as of % Total Normalized (1)
ID Date Date Occ Revenue $ NOI DSCR Date Date Occ Revenue $ NOI DSCR
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
Total WA $ $ WA WA $ $ WA
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
=========================================================================================================================
REQUIRED
- -------------------------------------------------------------------------------------------------------------------------
FINANCIAL INFORMATION: LOANS BALANCE
- -------------------------------------------------------------------------------------------------------------------------
# % $ %
- -------------------------------------------------------------------------------------------------------------------------
CURRENT FULL YEAR:
- -------------------------------------------------------------------------------------------------------------------------
CURRENT FULL YR. RECEIVED WITH DSC LESS THAN 1
- -------------------------------------------------------------------------------------------------------------------------
PRIOR FULL YEAR:
- -------------------------------------------------------------------------------------------------------------------------
PRIOR FULL YR. RECEIVED WITH DSC LESS THAN 1
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
TRAILING FINANCIAL (2) NET CHANGE
- -------------------------------------------------------------------------------
INFORMATION
- -------------------------------------------------------------------------------
MONTH REPORTED NORMALIZED PRECEDING & BASIS
- -------------------------------------------------------------------------------
Financial % %
Prospectus Info as of % Total (%) % Total (1)
ID Date Occ Revenue $ NOI DSCR Occ Revenue DSCR
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Total WA $ $ WA WA $ WA
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
===============================================================================
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
N-1
<PAGE>
EXHIBIT O
FIRST UNION
Commercial Mortgage Trust, FUNB Series 1999-C1
REO STATUS REPORT
as of ____________________
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
TOTAL OTHER
SQ FT PAID SCHEDULED P&I TOTAL ADVANCES
PROPESCTUS PROPERTY PROPERTY OR THRU LOAN ADVANCES EXPENSES (TAXES &
ID NAME TYPE CITY STATE UNITS DATE BALANCE TO DATE TO DATE ESCROW)
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
CAP VALUE APPRAISAL
CURRENT LTM LTM RATE USING BPO OR
PROSPECTUS TOTAL MONTHLY MATURITY NOI NOI/ ASSIGN VALUATION NOI & INTERNAL
ID EXPOSURE P&I DATE DATE DSC ** DATE CAP RATE VALUE**
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------------
LOSS
USING TOTAL
92% ESTIMATED APPRAISAL REO PENDING
PROSPECTUS APPR. OR RECOVERY REDUCTION TRANSFER AQUISITION RESOLUTION
ID BPO % REALIZED DATE DATE DATE COMMENTS
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
<FN>
(1) USE THE FOLLOWING CODES; App.--Appraisal, BPO--Brokers Opinion, Int--Internal Value
- -----------------------------------------------------------------------------------------------------
</FN>
</TABLE>
O-1
<PAGE>
EXHIBIT P
FIRST UNION
Commercial Mortgage Trust, FUNB Series 1999-C1
SERVICER WATCH LIST
as of ____________________
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
PROSUP PROPERTY CURRENT PAID LTM*
LOAN SHORT PROPERTY SCHEDULED THRU MATURITY CURRENT
NUMBER NAME TYPE CITY STATE BALANCE DATE DATE DSCR COMMENT / REASON ON WATCH LIST
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
TOTAL: $0.00
- ------------------------------------------------------------------------------------------------------------------------------------
*LTM--Last 12 months either trailing or last annual
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
P-1
<PAGE>
EXHIBIT Q
FIRST UNION
Commercial Mortgage Trust, FUNB Series 1999-C1
DELINQUENT LOAN STATUS REPORT
AS OF ____________________
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
SHORT NAME PAID SCHEDULED TOTAL P&I TOTAL
PROSPECTUS (WHEN PROPERTY SQ FT OR THRU LOAN ADVANCES EXPENSES
ID APPROPRIATE) TYPE CITY STATE UNITS DATE BALANCE TO DATE TO DATE
- ------------------------------------------------------------------------------------------------------------------------------------
90 + DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
60 DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Current & at Special Servicer
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
FCL - Foreclosure
- ------------------------------------------------------------------------------------------------------------------------------------
LTM - Latest 12 Months either Last Annual or Trailing 12 months
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Other Appraisal
Advances Current Current LTM BPO or
Prospectus (Taxes & Total Monthly Interest Maturity NOI LTM LTM Valuation Internal
ID Escrow) Exposure P&I Rate Date Date NOI DSCR Value Date Value**
- ------------------------------------------------------------------------------------------------------------------------------------
90 + DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
60 DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Current & at Special Servicer
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
LOSS USING ESTIMATED DATE EXPECTED
PROSPECTUS 92% APPR. RECOVERY TRANSFER CLOSING NOI FCL SALE WORKOUT
ID OR BPO (F) % DATE DATE FILED DATE STRATEGY COMMENTS
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------
90 + DAYS DELINQUENT
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
60 DAYS DELINQUENT
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
30 DAYS DELINQUENT
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
Current & at Special Servicer
- ----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------
<FN>
* Workout Strategy should match the CSSA Loan file using abreviated words in
place of a code number such as (FCL - In Foreclosure, MOD - Modification,
DPO - Discount Payoff, NS - Note Sale, BK - Bankruptcy, PP - Payment Plan,
TBD - To Be Determined etc...)
It is possible to combine the status codes if the loan is going in more
than one direction. (i.e. FCL/Mod, BK/Mod, BK/FCL/DPO)
** App - Appraisal, BPO - Broker opinion, Int. - Internal Value
</FN>
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Q-1
<PAGE>
EXHIBIT R
FIRST UNION
Commercial Mortgage Trust, FUNB Series 1999-C1
HISTORICAL LOAN MODIFICATION REPORT
As Of _________________
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
BALANCE
WHEN BALANCE AT THE
MOD/ SENT TO EFFECTIVE DATE
PROSPECTUS EXTENTION EFFECT SPECIAL OF OLD # MTHS FOR NEW OLD
ID CITY STATE FLAG DATE SERVICER REHABILITATION RATE RATE CHANGE RATE P&I
===========================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
===========================================================================================================================
TOTAL FOR ALL LOANS:
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
TOTAL FOR LOANS IN CURRENT MONTH:
- ---------------------------------------------------------------------------------------------------------------------------
# OF LOANS $ BALANCE
- ---------------------------------------------------------------------------------------------------------------------------
MODIFICATIONS:
- ---------------------------------------------------------------------------------------------------------------------------
MATURITY DATE EXTENTIONS:
- ---------------------------------------------------------------------------------------------------------------------------
TOTAL:
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
(2) EST.
FUTURE
TOTAL # INTEREST
MTHS (1) LOSS TO
FOR REALIZED TRUST $
PROSPECTUS NEW OLD NEW CHANGE LOSS TO (RATE
ID P&I MATURITY MATURITY OF MOD TRUST $ REDUCTION) COMMENT
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
==========================================================================================================
TOTAL FOR ALL LOANS:
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
TOTAL FOR LOANS IN CURRENT MONTH:
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
MODIFICATIONS:
- ----------------------------------------------------------------------------------------------------------
MATURITY DATE EXTENTIONS:
- ----------------------------------------------------------------------------------------------------------
TOTAL:
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------
<FN>
- ----------------------------------------------------------------------------------------------------------
* The information in these columns is from a particular point in time and should not change on this report
once assigned.
- ----------------------------------------------------------------------------------------------------------
(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.
- ----------------------------------------------------------------------------------------------------------
</FN>
</TABLE>
R-1
<PAGE>
EXHIBIT S
FIRST UNION
Commercial Mortgage Trust, FUNB Series 1999-C1
HISTORICAL LOSS ESTIMATE REPORT (REO-SOLD or DISCOUNTED PAYOFF)
as of ______________________
<TABLE>
<CAPTION>
===================================================================================================================================
LATEST
SHORT NAME % APPRAISAL OR EFFECT NET AMT
PROSPECTUS (WHEN PROPERTY RECEIVED BROKERS DATE OF SALES RECEIVED SCHEDULED TOTAL P&I TOTAL
ID APPROPRIATE) TYPE CITY STATE FROM SALE OPINION SALE PRICE FROM SALE BALANCE ADVANCED EXPENSES
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
TOTAL ALL LOANS:
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
CURRENT MONTH ONLY:
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
=========================================================================================================
DATE
DATE MINOR
LOSS ADJ TOTAL LOSS LOSS % OF
PROSPECTUS SERVICING ACTUAL LOSSES PASSED MINOR ADJ PASSED WITH SCHEDULED
ID FEES EXPENSE NET PROCEEDS PASSED THRU THRU TO TRUST THRU ADJUSTMENT BALANCE
=========================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
Total all Loans:
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
Current Month Only:
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
</TABLE>
S-1
<PAGE>
EXHIBIT T
FIRST UNION
Commercial Mortgage Trust, FUNB Series 1999-C1
FORM OF NOI ADJUSTMENT WORKSHEET for "year"
as of ____________________
<TABLE>
<S> <C> <C> <C> <C> <C>
PROPERTY OVERVIEW -------------
-------------
Control Number
-------------------------
Current Balance/Paid to Date
--------------------------------------------------------------------------------------------
Property Name
--------------------------------------------------------------------------------------------
Property Type
--------------------------------------------------------------------------------------------
Property Address, City, State
--------------------------------------------------------------------------------------------
Net Rentable Square Feet
-------------------------
Year Built/Year Renovated
--------------------------------------------
Year of Operations BORROWER ADJUSTMENT NORMALIZED
--------------------------------------------
Occupancy Rate*
--------------------------------------------
Average Rental Rate
--------------------------------------------
* Occupancy rates are year end or the ending date of the financial statement for the period.
INCOME:
Number of Mos. "Year"
-------------------------------------------------------------------
Period Ended Borrower Adjustment Normalized
Statement Classification Actual
-------------------------------------------------------------------
Rental Income (Category 1)
-------------------------------------------------------------------
Rental Income (Category 2)
-------------------------------------------------------------------
Rental Income (Category 3)
-------------------------------------------------------------------
Pass Throughs/Escalations
-------------------------------------------------------------------
Other Income
-------------------------------------------------------------------
-------------------------------------------------------------------
EFFECTIVE GROSS INCOME
-------------------------------------------------------------------
Normalized - Full year financial statements that have been reviewed
by the Servicer
OPERATING EXPENSES:
-------------------------------------------------------------------
Real Estate Taxes
-------------------------------------------------------------------
Property Insurance
-------------------------------------------------------------------
Utilities
-------------------------------------------------------------------
General & Administration
-------------------------------------------------------------------
Repairs and Maintenance
-------------------------------------------------------------------
Management Fees
-------------------------------------------------------------------
Payroll & Benefits Expense
-------------------------------------------------------------------
Advertising & Marketing
-------------------------------------------------------------------
Professional Fees
-------------------------------------------------------------------
Other Expenses
-------------------------------------------------------------------
Ground Rent
-------------------------------------------------------------------
TOTAL OPERATING EXPENSES $ -- $ -- $ --
-------------------------------------------------------------------
-------------------------------------------------------------------
OPERATING EXPENSE RATIO
-------------------------------------------------------------------
-------------------------------------------------------------------
NET OPERATING INCOME $ -- $ -- $ --
-------------------------------------------------------------------
-------------------------------------------------------------------
Leasing Commissions
-------------------------------------------------------------------
Tenant Improvements
-------------------------------------------------------------------
Replacement Reserve
-------------------------------------------------------------------
TOTAL CAPITAL ITEMS $ -- $ -- $ --
-------------------------------------------------------------------
-------------------------------------------------------------------
NOI AFTER CAPITAL ITEMS $ -- $ -- $ --
-------------------------------------------------------------------
-------------------------------------------------------------------
DEBT SERVICE (PER SERVICER) $ -- $ -- $ --
-------------------------------------------------------------------
CASH FLOW AFTER DEBT SERVICE $ -- $ -- $ --
-------------------------------------------------------------------
-------------------------------------------------------------------
(1)DSCR: (NOI/DEBT SERVICE)
-------------------------------------------------------------------
-------------------------------------------------------------------
DSCR: (AFTER RESERVES\CAP EXP.)
-------------------------------------------------------------------
-------------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
-------------------------------------------------------------------
(ie. operating statements, financial statements, tax return, other)
</TABLE>
NOTES AND ASSUMPTIONS:
=========================================
This report should be completed by the Servicer for any "Normalization" of the
Borrowers numbers.
The "Normalized" column is used in the Operating Statement Analysis Report.
This report may vary depending on the property type and because of the way
information may vary in each borrowers statement.
INOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
(1) Used in the Comparative Financial Status Report
T-1
<PAGE>
EXHIBIT U
FIRST UNION
Commercial Mortgage Trust, FUNB Series 1999-C1
OPERATING STATEMENT ANALYSIS REPORT
as of ____________________
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
PROPERTY OVERVIEW --------------
Control Number
--------------
-------------------------
Current Balance/Paid to Date
-----------------------------------------------------------------------------------------------
Property Name
-----------------------------------------------------------------------------------------------
Property Type
-----------------------------------------------------------------------------------------------
Property Address, City, State
-----------------------------------------------------------------------------------------------
Net Rentable Square Feet
-------------------------
Year Built/Year Renovated
-----------------------------------------------------------------
Year of Operations UNDERWRITING 1994 1995 1996 TRAILING
-----------------------------------------------------------------
Occupancy Rate*
-----------------------------------------------------------------
Average Rental Rate
-----------------------------------------------------------------
* OCCUPANCY RATES ARE YEAR END OR THE ENDING DATE OF THE FINANCIAL STATEMENT FOR THE PERIOD.
INCOME: NO. OF MOS.
--------------
Number of Mos. PRIOR YEAR CURRENT YR.
------------------------------------------------------------------------------------------
Period Ended UNDERWRITING 1996 1997 1998 98 TRAILING** 1997-BASE 1997-1996
Statement Classification BASE LINE NORMALIZED NORMALIZED NORMALIZED AS OF VARIANCE VARIANCE
------------------------------------------------------------------------------------------
Rental Income (Category 1)
------------------------------------------------------------------------------------------
Rental Income (Category 2)
------------------------------------------------------------------------------------------
Rental Income (Category 3)
------------------------------------------------------------------------------------------
Pass Through/Escalations
------------------------------------------------------------------------------------------
Other Income
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
EFFECTIVE GROSS INCOME $ -- $ -- $ -- $ -- $ -- % %
------------------------------------------------------------------------------------------
Normalized--Full year Financial statements that have been reviewed by the underwriter or
servicer
** Servicer will not be expected to "Normalize" these YTD numbers.
OPERATING EXPENSES:
------------------------------------------------------------------------------------------
Real Estate Taxes
------------------------------------------------------------------------------------------
Property Insurance
------------------------------------------------------------------------------------------
Utilities
------------------------------------------------------------------------------------------
General & Administration
------------------------------------------------------------------------------------------
Repairs and Maintenance
------------------------------------------------------------------------------------------
Management Fees
------------------------------------------------------------------------------------------
Payroll & Benefits Expense
------------------------------------------------------------------------------------------
Advertising & Marketing
------------------------------------------------------------------------------------------
Professional Fees
------------------------------------------------------------------------------------------
Other Expenses
------------------------------------------------------------------------------------------
Ground Rent
------------------------------------------------------------------------------------------
TOTAL OPERATING EXPENSES $ -- $ -- $ -- $ -- $ -- % %
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
OPERATING EXPENSE RATIO
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
NET OPERATING INCOME $ -- $ -- $ -- $ -- $ --
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
Leasing Commissions
------------------------------------------------------------------------------------------
Tenant Improvements
------------------------------------------------------------------------------------------
Replacement Reserve
------------------------------------------------------------------------------------------
TOTAL CAPITAL ITEMS $ -- $ -- $ -- $ -- $ -- $ --
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
NOI AFTER CAPITAL ITEMS $ -- $ -- $ -- $ -- $ -- $ --
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
DEBT SERVICE (PER SERVICER) $ -- $ -- $ -- $ -- $ -- $ --
------------------------------------------------------------------------------------------
CASH FLOW AFTER DEBT SERVICE $ -- $ -- $ -- $ -- $ -- $ --
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
(1) DSCR: (NOI/DEBT SERVICE)
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
DSCR: (AFTER RESERVES\CAP EXP.)
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
SOURCE OF FINANCIAL DATA:
------------------------------------------------------------------------------------------
(i.e. operating statements, financial statements, tax return, other)
NOTES AND ASSUMPTIONS:
===============================================================================================================================
</TABLE>
The years shown above will roll always showing a three year history.
This report may vary depending on the property type and because of the way
information may vary in each borrowers statement.
Rental Income needs to be broken down, differently whenever possible for each
property type as follows: Retail: 1) Base Rent 2) Percentage rents on cashflow
Hotel: 1) Room Revenue 2) Food/Beverage A34 Nursing Home: 1) Private 2) Medicaid
3) Medicare
INCOME: COMMENTS
EXPENSE: COMMENTS
CAPITAL ITEMS: COMMENTS
(1) Used in the comparative Financial Status Report
U-1
<PAGE>
EXHIBIT V
Form of Loan Payoff Notification Report
FUNB 1999-C1
PAYOFF NOTIFICATION REPORT
AS OF
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
S4 S55 S61 S58 P7 P8 P10
Prospectus ID Short Name Property State Scheduled Paid Thru Current
(When Type Loan Balance Date Interest Rate
Appropriate)
<S> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
Scheduled Payments
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
Unscheduled Payments
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
Total:
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
<CAPTION>
S4 P11 P54 SERVICER ESTIMATED INFORMATION
Prospectus ID Maturity LTM DSCR Yield Expected Expected
Date Maintenance Payment Distribution
Date Date
- --------------------------------------------------------------------------------
<S>
- --------------------------------------------------------------------------------
Scheduled Payments
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Unscheduled Payment
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Total:
- --------------------------------------------------------------------------------
</TABLE>
V-1
<PAGE>
EXHIBIT W
Form of CSSA Loan File Report
<TABLE>
<CAPTION>
Transaction Name Adv Date
- ----------------------------------------------------------------------------------------------------------------------------------
First Net Schedule Schedule Schedule
Union Due Mortgage Mortgage Beginning Schedule Principal Interest
Loan # Date Rate Rate Balance P&I Amount Payment Payment
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W-1
<PAGE>
EXHIBIT X-1
FORM OF CERTIFICATEHOLDER CONFIRMATION CERTIFICATE
REQUEST BY BENEFICIAL HOLDER
[Date]
Norwest Bank Minnesota, National Association
Three New York Plaza
New York, New York 10004
Attention: Corporate Trust Services (CMBS)
Re: First Union Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates,
FUNB Series 1999-C1
In accordance with Section 3.15 of the Pooling and Servicing Agreement.
dated as of December 1, 1998 (the "Pooling and Servicing Agreement"), among
First Union Commercial Mortgage Securities, Inc. as depositor (the "Depositor"),
First Union National Bank, as master servicer, Lennar Partners, Inc., as special
servicer, and Norwest Bank Minnesota, National Association as trustee (in such
capacity, the "Trustee"), with respect to the First Union Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 1999-C1 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner of the Class ____ Certificates.
2. The undersigned is requesting the information identified on the
schedule attached hereto pursuant to Section 3.15 of the Pooling and
Servicing Agreement (the "Information").
3. In consideration of the Trustee's disclosure to the undersigned of the
Information, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in making the
evaluation described in paragraph 2), and such Information will not,
without the prior written consent of the Trustee, be disclosed by the
undersigned or by its officers, directors, partners employees, agents
or representatives (collectively, the "Representatives") in any manner
whatsoever, in whole or in part; provided that the undersigned may
provide all or any part of the Information to any other person or
entity that holds or is contemplating the purchase of any Certificate
or interest therein, but only if such person or entity
X-1-1
<PAGE>
confirms in writing such ownership interest or prospective ownership
interest and agrees to keep it confidential.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities
Act of 1933, as amended, (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended, or would require registration of any
Certificate pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement
by itself or any of its Representatives and shall indemnify the
Depositor, the Trustee and the Trust for any loss, liability or
expense incurred thereby with respect to any such breach by the
undersigned or any of its Representatives.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto
by its duly authorized officer, as of the day and year written above.
[BENEFICIAL HOLDER OF A
CERTIFICATE]
By:
------------------------------
Name:
Title:
X-1-2
<PAGE>
EXHIBIT X-2
FORM PROSPECTIVE PURCHASER CERTIFICATE
[Date]
[TRUSTEE]
Re: First Union Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates,
FUNB Series 1999-C1 (the "Certificates").
In accordance with Section 3.15 of the Pooling and Servicing Agreement,
dated as of December 1, 1998 (the "Pooling and Servicing Agreement"), among
First Union Commercial Mortgage Securities, Inc., as depositor (the
"Depositor"), First Union National Bank as master servicer, Lennar Partners,
Inc., as special servicer, and Norwest Bank Minnesota, National Association as
trustee (in such capacity, the "Trustee"), with respect to the First Union
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, FUNB
Series 1999-C1 (the "Certificates"), the undersigned hereby certifies and agrees
as follows:
1. The undersigned is contemplating an investment in the Class __
Certificates.
2. The undersigned is requesting the information identified on the
schedule attached hereto pursuant to Section 3.15 of the Pooling and
Servicing Agreement (the "Information") for use in evaluating such
possible investment.
3. In consideration of the Trustee's disclosure to the undersigned of the
Information, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in making the
investment decision described in paragraphs 1 and 2), and such
Information will not, without the prior written consent of the
Trustee, be disclosed by the undersigned or by its officers,
directors, partners employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in
whole or in part.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended, or
X-2-1
<PAGE>
would require registration of any Certificate pursuant to Section 5 of
the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement
by itself or any of its Representatives and shall indemnify the
Depositor, the Trustee and the Trust for any loss, liability or
expense incurred thereby with respect to any such breach by the
undersigned or any of its Representatives.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto
by its duly authorized officer, as of the day and year written above.
[PROSPECTIVE PURCHASER]
By:
-------------------------------
Name:
Title:
X-2-2
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
--------------------------------
Mortgage Loan Purchase Agreement, dated as of December 1, 1998 (the
"Agreement"), between First Union National Bank (the "Seller") and First Union
Commercial Mortgage Securities, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase certain
multifamily and commercial mortgage loans (the "Mortgage Loans") as provided
herein. The Purchaser intends to deposit the Mortgage Loans into a trust fund
(the "Trust Fund"), the beneficial ownership of which will be evidenced by
multiple classes (each, a "Class") of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to the Trust Fund. The Trust Fund will be
created and the Certificates will be issued pursuant to a Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of the Cut-off Date,
among the Purchaser as depositor, First Union National Bank as master servicer
(in such capacity, the "Master Servicer"), Lennar Partners, Inc., as special
servicer (in such capacity, the "Special Servicer"), and Norwest Bank Minnesota,
National Association as trustee (the "Trustee"). Capitalized terms used but not
defined herein have the respective meanings set forth in the Pooling and
Servicing Agreement.
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
(a) The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the schedule (the "Mortgage Loan Schedule") annexed
hereto as Exhibit A. The Mortgage Loan Schedule may be amended to reflect the
actual Mortgage Loans delivered to the Purchaser pursuant to the terms hereof.
The Mortgage Loans will have an aggregate principal balance of $1,165,454,045.66
(the "Initial Pool Balance") (subject to a variance of plus or minus 5.0%) as of
the close of business on the Cut-off Date, after giving effect to any payments
due on or before such date whether or not received. The purchase and sale of the
Mortgage Loans shall take place on December 23, 1998 or such other date as shall
be mutually acceptable to the parties hereto (the "Closing Date"). The
consideration (the "Aggregate Purchase Price") for the Mortgage Loans shall
consist of a cash amount equal to the Initial Pool Balance plus interest accrued
on the Initial Pool Balance at the related Net Mortgage Rate for the period from
and including the Cut-off Date up to but
<PAGE>
not including the Closing Date less fees and expenses payable by the Seller. The
Aggregate Purchase Price shall be paid to the Seller or its designee by wire
transfer in immediately available funds on the Closing Date.
The Purchaser will assign to the Trustee, all of its right, title and
interest in and to the Mortgage Loans.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Purchaser, without
recourse (except as set forth in this Agreement), all the right, title and
interest of the Seller in and to the Mortgage Loans identified on the Mortgage
Loan Schedule as of such date, on a servicing released basis. The Mortgage Loan
Schedule, as it may be amended, shall conform to the requirements set forth in
this Agreement and the Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
be promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has, on behalf of the
Purchaser, delivered to the Trustee, the documents and instruments specified
below with respect to each Mortgage Loan (each a "Mortgage File"). All Mortgage
Files so delivered will be held by the Trustee in escrow at all times prior to
the Closing Date. Each Mortgage File shall, except as otherwise disclosed on
Exhibit B hereto, contain the following documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof (or a lost note
affidavit and indemnity with a copy of such Mortgage Note
attached thereto) together with any intervening endorsements
thereon, endorsed (without recourse, representation or warranty,
express or implied) to the order of NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as trustee for the registered holders of
First Union Commercial Mortgage Trust, Commercial Mortgage
Pass-
2
<PAGE>
Through Certificates, FUNB Series 1999-C1 or in blank;
(ii) an original or copy of the Mortgage and any intervening
assignments thereof, in each case with evidence of recording
indicated thereon;
(iii) an original or copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage), together with any
intervening assignments thereof, in each case with evidence of
recording indicated thereon;
(iv) an original executed assignment, in recordable form, of (a) the
Mortgage, (b) any related Assignment of Leases (if such item is a
document separate from the Mortgage) and (c) any other recorded
document relating to the Mortgage Loan otherwise included in the
Mortgage File, in favor of NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as trustee for the registered holders of First Union
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, FUNB Series 1999-C1, in recordable form;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan, in favor of NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as trustee for the registered holders of First Union
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, FUNB Series 1999-C1;
(vi) originals or copies of any written modification agreements in
those instances where the terms or provisions of the Mortgage or
Mortgage Note have been modified;
(vii) the original or a copy of the policy or certificate of lender's
title insurance issued on the date of the origination of such
Mortgage Loan, or, if such policy has not been issued, an
irrevocable, binding commitment to issue such title insurance
policy; and
(viii) any filed copies (with evidence of filing) of any prior UCC
Financing Statements in favor of the originator of such Mortgage
Loan or in favor of any assignee prior to the Trustee (but only
to the extent the Seller had possession of such UCC Financing
Statements prior to the Closing Date) and, if there is an
effective UCC Financing Statement in favor of the Seller on
record with the applicable public office for UCC Financing
3
<PAGE>
Statements, an original UCC-2 or UCC-3 assignment, in form
suitable for filing, as appropriate, in favor of NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, as trustee for the registered
holders of First Union Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, FUNB Series 1999-C1; and
(ix) an original or copy of any Ground Lease, any Credit Lease and any
Lease Enhancement Policy, RVI Policy or Guaranty.
(d) Within 30 days following the Closing Date, the Purchaser shall
submit or cause to be submitted for recordation or filing, as the case may be,
in the appropriate public office for real property records or Uniform Commercial
Code financing statements, as appropriate, each assignment of Mortgage and each
assignment of Assignment of Leases referred to in clause (iv) of subsection (c)
above and each UCC-2 and UCC-3 in favor of and delivered to the Trustee
constituting part of the Mortgage File. If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, then the Seller shall prepare a substitute therefor or cure such defect
or cause such to be done, as the case may be, and the Seller shall deliver such
substitute or corrected document or instrument to the Purchaser or its designee.
(e) All documents and records (except attorney-client privileged
communication and internal credit analysis of the Seller) relating to each
Mortgage Loan and in the Seller's possession (the "Additional Mortgage Loan
Documents") that are not required to be delivered to the Trustee shall be
delivered or caused to be delivered by the Seller to the Master Servicer or at
the direction of the Master Servicer to the appropriate sub-servicer, together
with any related escrow amounts and reserve amounts.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a national banking association validly existing
under the laws of the United States of America and possesses all
requisite authority, power, licenses, permits and franchises to carry
on its business as currently conducted by it and to execute, deliver
and comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal,
valid and binding
4
<PAGE>
obligation of the Seller, enforceable against the Seller in accordance
with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights in general, as they may
be applied in the context of the insolvency of a national banking
association, and by general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law),
and by public policy considerations underlying the securities laws, to
the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement which purport to
provide indemnification from liabilities under applicable securities
laws.
(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's articles of association or
By-Laws, (B) violate any law or regulation or any administrative
decree or order to which it is subject or (C) constitute a material
default (or an event which, with notice or lapse of time, or both,
would constitute a material default) under, or result in the breach
of, any material contract, agreement or other instrument to which the
Seller is a party or by which the Seller is bound.
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default
might have consequences that would, in the Seller's reasonable and
good faith judgment, materially and adversely affect the condition
(financial or other) or operations of the Seller or its properties or
have consequences that would materially and adversely affect its
performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and
good faith judgment, materially and adversely affect the ability of
the Seller to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this
Agreement or the performance by the Seller of its obligations under
this Agreement (except to the extent such consent has been obtained).
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
5
<PAGE>
Agreement except as have previously been obtained, and no bulk sale
law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller that would, in the Seller's
good faith and reasonable judgment, prohibit its entering into this
Agreement or materially and adversely affect the performance by the
Seller of its obligations under this Agreement.
(viii) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Seller will report the
transfer of the Mortgage Loans to the Purchaser as a sale of the
Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the Aggregate Purchase Price. The
consideration received by the Seller upon the sale of the Mortgage
Loans to the Purchaser will constitute reasonably equivalent value at
least equal to the fair market value of the Mortgage Loans. The Seller
will be solvent at all relevant times prior to, and will not be
rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not selling the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of the
creditors of the Seller.
(b) The Seller hereby makes the representations and warranties contained in
Schedule I, Schedule II, Schedule III and Schedule IV hereto for the benefit of
the Purchaser and the Trustee for the benefit of the Certificateholders as of
the Closing Date, with respect to (and solely with respect to) each Mortgage
Loan.
(c) If the Seller receives written notice of a Document Defect or a Breach
pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a
Mortgage Loan, then the Seller shall not later than 90 days from receipt of such
notice (or, in the case of a Document Defect or Breach relating to a Mortgage
Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions
(a "Qualified Mortgage"), not later than 90 days of any party to the Pooling and
Servicing Agreement discovering such Document Defect or Breach), if such
Document Defect or Breach shall materially and adversely affect the value of the
related Mortgage Loan or the interest of the Certificateholders therein, cure
such Document Defect or Breach, as the case may be, in all material respects,
which shall include payment of losses and any Additional Trust Fund Expenses
associated therewith or, if such Document Defect or Breach (other than omissions
solely due to a document not having been returned by the related recording
office) cannot be cured within such 90-day period, (i) repurchase the affected
Mortgage Loan at the applicable Purchase Price not later than the end of such
90-day period or (ii) substitute a Qualified Substitute Mortgage Loan for such
affected Mortgage Loan not later than the end of such
6
<PAGE>
90-day period (and in no event later than the second anniversary of the Closing
Date) and pay the Master Servicer for deposit into the Certificate Account, any
Substitution Shortfall Amount in connection therewith; provided, however, that
if such Document Defect or Breach is capable of being cured but not within such
90-day period, such Document Defect or Breach does not relate to the Mortgage
Loan not being treated as a Qualified Mortgage, and the Seller has commenced and
is diligently proceeding with the cure of such Document Defect or Breach within
such 90-day period, such Seller shall have an additional 90 days to complete
such cure (or, failing such cure, to repurchase the related Mortgage Loan); and
provided, further, that with respect to such additional 90-day period the Seller
shall have delivered an Officer's Certificate to the Trustee setting forth the
reason such Document Defect or Breach is not capable of being cured within the
initial 90-day period and what actions the Seller is pursuing in connection with
the cure thereof and stating that the Seller anticipates that such Document
Defect or Breach will be cured within the additional 90-day period. For a period
of two years from the Closing Date, so long as there remains any Mortgage File
relating to a Mortgage Loan as to which there is any uncured Document Defect or
Breach, the Seller shall provide the Officer's Certificate to the Trustee
described above as to the reasons such Document Defect or Breach remains uncured
and as to the actions being taken to pursue cure; provided, however, that,
without limiting the effect of the forgoing provisions of this Section 3(c), if
such Document Defect or Breach shall materially and adversely affect the value
of such Mortgage Loan or the interests of the holders of the Certificates
therein, the Seller shall in all cases on or prior to the second anniversary of
the Closing Date either cause such Document Defect or Breach to be cured or
repurchase the affected Mortgage Loan. Notwithstanding the foregoing, the
delivery of a commitment to issue a policy of lender's title insurance as
described in clause (xii) of Schedule I hereof in lieu of the delivery of the
actual policy of lender's title insurance shall not be considered a Document
Defect or Breach with respect to any Mortgage File if such actual policy of
insurance is delivered to the Trustee or a Custodian on its behalf not later
than the 90th day following the Closing Date.
(d) In connection with any repurchase or substitution of one or more
Mortgage Loans contemplated hereby, upon receipt of a certificate from a
Servicing Officer certifying as to the receipt of the Purchase Price or
Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and
the delivery of the Mortgage File(s) and the Servicing File(s) for the related
Qualified Substitute Mortgage Loan(s) to the Custodian and the Master Servicer,
respectively, if applicable (i) the Trustee shall execute and deliver such
endorsements and assignments as are provided to it by the Master Servicer, in
each case without recourse, representation or warranty, as shall be necessary to
vest in the Seller, the legal and beneficial ownership of each repurchased
Mortgage Loan or substituted
7
<PAGE>
Mortgage Loan, as applicable, and (ii) the Trustee, the Custodian, the Master
Servicer and the Special Servicer shall each tender to the Seller, upon delivery
to each of them of a receipt executed by the Seller, all portions of the
Mortgage File and other documents pertaining to such Mortgage Loan possessed by
it.
SECTION 4. Representations and Warranties of the Purchaser. In order to induce
the Seller to enter into this Agreement, the Purchaser hereby represents and
warrants for the benefit of the Seller as of the date hereof that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of North Carolina. The
Purchaser has the full corporate power and authority and legal right to acquire
the Mortgage Loans from the Seller and to transfer the Mortgage Loans to the
Trustee.
(b) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the Purchaser's directors
and officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the rights
of creditors generally, or (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
(c) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of or compliance by the
Purchaser with this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(d) None of the acquisition of the Mortgage Loans by the Purchaser,
the transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Purchaser, conflicts or will conflict
with, results or will result in a breach of, or constitutes or will constitute a
default under (A) any term or provision of the Purchaser's Articles of
Incorporation or Bylaws, (B) any term or provision of any material agreement,
contract, instrument or indenture, to which the Purchaser is a party or by which
the Purchaser is bound, or (C) any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having jurisdiction
over the Purchaser or its assets.
8
<PAGE>
(e) Under GAAP and for federal income tax purposes, the Purchaser will
report the transfer of the Mortgage Loans by the Seller to the Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the Aggregate Purchase Price.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Willkie Farr & Gallagher, 787 Seventh
Avenue, New York, New York 10019-6099 at 10:00 A.M., New York time, on the
Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set forth
in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of the
representations and warranties of the Purchaser set forth in Section 4 of this
Agreement shall be true and correct in all material respects as of the Closing
Date; provided, however, that any material inaccuracy in any representation and
warranty set forth in or made pursuant to Section 3(b) shall not affect the
Purchaser's obligation to purchase the Mortgage Loans not affected by such
inaccuracy;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser in its reasonable discretion, shall be duly executed and delivered by
all signatories as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee (or a
Custodian on its behalf) and the Master Servicer, respectively, all documents
represented to have been or required to be delivered to the Trustee and the
Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects and the Seller shall have the ability to comply with all terms
and conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date; and
(e) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement as of the Closing Date.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
9
<PAGE>
SECTION 6. Closing Documents. The Closing Documents shall consist of the
following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) A Certificate of the Seller, executed by a duly authorized officer
of the Seller and dated the Closing Date, and upon which the Purchaser and the
Underwriters may rely, to the effect that: (i) the representations and
warranties of the Seller in this Agreement are true and correct in all material
respects at and as of the Closing Date with the same effect as if made on such
date; and (ii) the Seller has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part that are required under
this Agreement to be performed or satisfied at or prior to the date hereof;
(c) An Officer's Certificate from an officer of the Seller, dated the
Closing Date, and upon which the Purchaser may rely, to the effect that each
individual who, as an officer or representative of the Seller, signed this
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(d) An Officer's Certificate from an officer of the Seller, dated the
Closing Date, and upon which the Purchaser and the Underwriters may rely, to the
effect that (i) such officer has carefully examined the Prospectus and nothing
has come to his attention that would lead him to believe that the Prospectus, as
of the date of the Prospectus Supplement or as of the Closing Date, included or
includes any untrue statement of a material fact relating to the Mortgage Loans
or omitted or omits to state therein a material fact necessary in order to make
the statements therein relating to the Mortgage Loans, in light of the
circumstances under which they were made, not misleading, and (ii) such officer
has examined the Memorandum and nothing has come to his attention that would
lead him to believe that the Memorandum, as of the date thereof or as of the
Closing Date, included or includes any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omits to state therein a material
fact necessary in order to make the statements therein related to the Mortgage
Loans, in the light of the circumstances under which they were made, not
misleading.
(e) The resolutions of the requisite committee of the Seller's board
of directors authorizing the Seller's entering into the transactions
contemplated by this Agreement, the articles of association and by-laws of the
Seller, and a certificate of good standing of the Seller issued by the Office
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of the Comptroller of the Currency of the United States not earlier than sixty
(60) days prior to the Closing Date;
(f) A written opinion of counsel for the Seller, substantially in the
form of Exhibit C, with any modifications required by the Purchaser, its counsel
or Rating Agencies, dated the Closing Date and addressed to the Purchaser, the
Trustee, the Underwriters and each of the Rating Agencies, together with such
other written opinions as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 7. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser, the
Underwriters, their respective officers and directors, and each person, if any,
who controls the Purchaser or any Underwriter within the meaning of either
Section 15 of the Securities Act of 1933, as amended (the "1933 Act") or Section
20 of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the 1933 Act, the 1934 Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) (i) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in (A) the Memorandum, any
Approved Offering Document, the Diskette or, insofar as they are required to be
filed as part of the Registration Statement pursuant to the No-Action Letters,
any Computational Materials or ABS Term Sheets with respect to the Retained
Certificates (if offered pursuant to an Approved Offering Document), or in any
revision or amendment of or supplement to any of the foregoing or (B) any items
similar to Computational Materials and ABS Term Sheets forwarded to prospective
investors in the Non-Retained Certificates, or (ii) arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; but only if and
to the extent that (I) any such untrue statement or alleged untrue statement or
omission or alleged omission arises out of or is based upon an untrue statement
or omission with respect to the Mortgage Loans, the related Mortgagors and/or
the related Mortgaged Properties contained in the Data File (it being herein
acknowledged that the Data File was and will be used to prepare the Memorandum,
any Approved Offering Document including without limitation Annex A thereto, the
Diskette, any Computational Materials and ABS Term Sheets and any items similar
to Computational Materials and ABS Term Sheets, (II) any such untrue statement
or alleged untrue statement or omission or alleged omission of a material fact
is with respect to, or arises
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out of or is based upon an untrue statement or omission of a material fact with
respect to, the information regarding the Mortgage Loans, the related
Mortgagors, the related Mortgaged Properties and/or the Seller set forth (X) in
the Memorandum and any Approved Offering Document under the headings (or
corresponding headings with respect to any Approved Offering Document): "SUMMARY
OF PPM SUPPLEMENT--THE PARTIES-The Mortgage Loan Seller", "THE MORTGAGE LOANS",
"RISK FACTORS--Certain Risk Factors Associated With the Mortgage Loans" and
"DESCRIPTION OF THE MORTGAGE POOL" and (Y) on Annex A to the Memorandum, any
Approved Offering Document and, to the extent consistent therewith, on a
Diskette, or (III) any such untrue statement or alleged untrue statement or
omission or alleged omission arises out of or is based upon a breach of the
representations and warranties of the Seller set forth in or made pursuant to
Section 3; provided that the indemnification provided by this Section 7 shall
not apply to the extent that such untrue statement or omission of a material
fact was made as a result of an error in the manipulation of, or in any
calculations based upon, or in any aggregation of the information regarding the
Mortgage Loans, the related Mortgagors and/or the related Mortgaged Properties
set forth in the Data File and Annex A to the Memorandum or any Approved
Offering Document. This indemnity agreement will be in addition to any liability
which the Seller may otherwise have.
(b) For purposes of this Agreement, "Registration Statement" shall
mean such registration statement as shall be filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Base Prospectus" shall mean the prospectus dated December
21, 1998 included as part of the Memorandum or as part of the Registration
Statement; "Prospectus Supplement" shall mean any supplement to the Base
Prospectus relating to certificates offered pursuant to the Registration
Statement; "Memorandum" shall mean the private placement memorandum dated
December 23, 1998, relating to the Non-Retained Certificates, including the PPM
Supplement (the "PPM Supplement") and the Base Prospectus; "Retained
Certificates" shall mean the Class A-1, Class A-2, Class IO-1, Class B, Class C,
Class D and Class E; "Non-Retained Certificates" shall mean the Certificates
other than the Retained Certificates; "Approved Offering Document" shall mean
the Base Prospectus as supplemented by a Prospectus Supplement pursuant to which
the Retained Certificates are offered to the public, as may be approved by the
Seller; "Computational Materials" shall have the meaning assigned thereto in the
no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Securities and Exchange Commission (the "Commission") to Kidder,
Peabody Acceptance Corporation I, Kidder, Peabody & Co. Incorporated, and Kidder
Structured Asset Corporation and the no-action letter dated May 27, 1994 issued
by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "Kidder Letters"); "ABS Term Sheets" shall
have the meaning assigned thereto in the no-action letter
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dated February 17, 1995 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (the "PSA Letter" and, together
with the Kidder letters, the "No-Action Letters"); "Diskette" shall mean the
diskette or compact disc attached to the Memorandum and any Approved Offering
Document; and "Data File" shall mean the compilation of information and data
regarding the Mortgage Loans covered by the Agreed Upon Procedures Letter dated
December 23, 1998 and rendered by Deloitte & Touche LLP (a "hard copy" of which
Data File was initialed on behalf of the Seller and the Purchaser).
(c) Promptly after receipt by any person entitled to indemnification
under this Section 7 (an "indemnified party") of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against the Seller (the "indemnifying party") under this Section 7, notify
the indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve it from any liability that
it may have to any indemnified party otherwise than under this Section 7. In
case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein, and to the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel selected by the indemnifying party and satisfactory to such
indemnified party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party or parties shall have reasonably concluded that there may be
legal defenses available to it or them and/or other indemnified parties that are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof, unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in accordance with
the proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Purchaser and the Underwriters, representing
all the indemnified parties under Section 7(a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the
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indemnified party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall only be in respect of
the counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) hereof or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties.
(e) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 7(c) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 7, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Purchaser,
the Underwriters, any of their respective directors or officers, or any person
controlling the Purchaser or the Underwriters, and (iii) acceptance of and
payment for any of the Certificates.
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(g) Without limiting the generality or applicability of any other
provision of this Agreement, the Underwriters shall be third-party beneficiaries
of the provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the Purchaser to the
extent that the Purchaser has paid) the following amounts: (i) the costs and
expenses of printing (or otherwise reproducing) and delivering a preliminary and
final Prospectus and Memorandum relating to the Certificates; (ii) the initial
fees, costs, and expenses of the Trustee (including reasonable attorneys' fees);
(iii) the filing fee charged by the Securities and Exchange Commission for
registration of the Certificates so registered; (iv) the fees charged by the
Rating Agencies to rate the Certificates so rated; (v) the expense of recording
any assignment of Mortgage or assignment of Assignment of Leases as contemplated
by Section 2 hereof; and (vi) the cost of obtaining a "comfort letter" from a
firm of certified public accountants selected by the Purchaser and the Seller
with respect to numerical information in respect of the Mortgage Loans included
in the Prospectus and Memorandum. All other costs and expenses in connection
with the transactions contemplated hereunder shall be borne by the party
incurring such expense.
SECTION 9. Grant of a Security Interest. It is the express intent of the parties
hereto that the conveyance of the Mortgage Loans by the Seller to the Purchaser
as provided in Section 2 hereof be, and be construed as, a sale of the Mortgage
Loans by the Seller to the Purchaser and not as a pledge of the Mortgage Loans
by the Seller to the Purchaser to secure a debt or other obligation of the
Seller. However, if, notwithstanding the aforementioned intent of the parties,
the Mortgage Loans are held to be property of the Seller, then, (a) it is the
express intent of the parties that such conveyance be deemed a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller, and (b) (i) this Agreement shall also be deemed to be
a security agreement within the meaning of Articles 8 and 9 of the Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance provided for
in Section 2 hereof shall be deemed to be a grant by the Seller to the Purchaser
of a security interest in all of the Seller's right, title and interest in and
to the Mortgage Loans, and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including without limitation all amounts, other than investment
earnings, from time to time held or invested in the Certificate Account, the
Distribution Account or, if established, the REO Account (each as defined in the
Pooling and Servicing Agreement) whether in the form of cash, instruments,
securities or other property; (iii) the assignment to the Trustee of the
interest of the Purchaser as contemplated by Section 1 hereof shall be deemed to
be an assignment of any security interest created hereunder; (iv) the possession
by the Trustee or any of its agents, including, without limitation, the
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Custodian, 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" for purposes of perfecting the security
interest pursuant to Section 9-305 of the Uniform Commercial Code of the
applicable jurisdiction; and (v) notifications to persons (other than the
Trustee) holding such property, and acknowledgments, receipts or confirmations
from persons (other than the Trustee) holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement.
SECTION 10. Notices. All notices, copies, requests, consents, demands and other
communications required hereunder shall be in writing and telecopied or
delivered to the intended recipient at the "Address for Notices" specified
beneath its name on the signature pages hereof or, as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller submitted pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser (and by the Purchaser to the Trustee).
SECTION 12. Severability of Provisions. Any part, provision, representation,
warranty or covenant of this Agreement that is prohibited or which is held to be
void or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation, warranty or covenant of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any
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provision of law which prohibits or renders void or unenforceable any provision
hereof.
SECTION 13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS
AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH
THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO INTEND THAT THE
PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY
TO THIS AGREEMENT.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to execute
and deliver such instruments and take such further actions as the other party
may, from time to time, reasonably request in order to effectuate the purposes
and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the Seller
under this Agreement shall not be assigned by the Seller without the prior
written consent of the Purchaser, except that any person into which the Seller
may be merged or consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. The Purchaser has the right to assign its
interest under this Agreement, in whole or in part, as may be required to effect
the purposes of the Pooling and Servicing Agreement, and the assignee shall, to
the extent of such assignment, succeed to the rights and obligations hereunder
of the Purchaser. Subject to the foregoing, this Agreement shall bind and inure
to the benefit of and be enforceable by the Seller, the Purchaser, the
Underwriters (as intended third party beneficiaries hereof) and their permitted
successors and assigns, and the officers, directors and controlling persons
referred to in Section 7. This Agreement is enforceable by the Underwriters and
the other third party beneficiaries hereto in all respects to the same extent as
if they had been signatories hereof.
SECTION 17. Amendments. No term or provision of this Agreement may be waived or
modified unless such waiver or modification is in writing and signed by a duly
authorized officer of the party, or third party beneficiary, against whom such
waiver or modification is sought to be enforced.
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
------
FIRST UNION NATIONAL BANK
By: /s/ BARRY REINER
---------------------
Name: Barry Reiner
Title: Senior Vice President
Address for Notices:
One First Union Center
301 South College Street
Charlotte, North Carolina 28288-0600
Attention: Barry Reiner
Telecopier No.: (704)383-9601
Telephone No.: (704)374-4499
PURCHASER
FIRST UNION COMMERCIAL
MORTGAGE SECURITIES, INC.
By: /s/ CRAIG LIEBERMAN
---------------------
Name: Craig Lieberman
Title: Vice President
Address for Notices:
One First Union Center
301 South College Street
Charlotte, North Carolina 28288-0600
Attention: Craig Lieberman
Telecopier No.: (704) 374-6435
Telephone No.: (704) 383-7407
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SCHEDULE I
General Mortgage Representations and Warranties
(i) The information pertaining to each Mortgage Loan set forth in the
Mortgage Loan Schedule was true and correct in all material respects as of the
Cut-Off Date;
(ii) If such Mortgage Loan was originated by the Seller or an
affiliate thereof, then, as of the date of its origination, such Mortgage Loan
complied in all material respects with, or was exempt from, all requirements of
federal, state or local law relating to the origination of such Mortgage Loan;
and, if such Mortgage Loan was not originated by the Seller or an affiliate
thereof, then, to the best of the Seller's knowledge after having performed the
type of due diligence customarily performed by prudent institutional commercial
and multifamily mortgage lenders, as of the date of its origination, such
Mortgage Loan complied in all material respects with, or was exempt from, all
requirements of federal, state or local law relating to the origination of such
Mortgage Loan;
(iii) The Seller owns the Mortgage Loan, has good and marketable title
thereto, has full right and authority to sell, assign and transfer the Mortgage
Loan and is transferring the Mortgage Loan free and clear of any and all liens,
pledges, charges or security interests of any nature encumbering such Mortgage
Loan, and no provision of the Mortgage Note, Mortgage or other loan document
relating to such Mortgage Loan prohibits or restricts the Seller's right to
assign or transfer such Mortgage Loan;
(iv) The proceeds of such Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder;
(v) Each of the related Mortgage Note, Mortgage(s), Assignment of
Leases, if any, and other agreements executed in connection therewith is the
legal, valid and binding obligation of the maker thereof (subject to any
non-recourse provisions therein and any state anti-deficiency legislation),
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(vi) As of the date of its origination, there was no valid offset,
defense, counterclaim or right to rescission with respect to any of the related
Mortgage Note, Mortgage(s) or
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other agreements executed in connection therewith, and, as of the Cut-off Date,
to the best knowledge of the Seller, there is no valid offset, defense,
counterclaim or right to rescission with respect to such Mortgage Note,
Mortgage(s) or other agreements;
(vii) The assignment of the related Mortgage and Assignment of Leases
to the Trustee constitutes the legal, valid, binding and enforceable assignment
of such Mortgage in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(viii) Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property, which Mortgaged Property is free and clear of
all encumbrances and liens having priority over or on a parity with the first
lien of such Mortgage, except for (a) liens for real estate taxes and special
assessments not yet due and payable, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public record as of the date of
recording of such Mortgage, such exceptions appearing of record being
customarily acceptable to mortgage lending institutions generally or
specifically reflected in the appraisal of such Mortgaged Property made in
connection with the origination of such Mortgage Loan, and (c) other matters to
which like properties are commonly subject and which do not, individually or in
the aggregate, materially interfere with the benefits of the security intended
to be provided by such Mortgage, or the Mortgagor's ability to pay its
obligations under the Mortgage Loan as they become due, or materially affect the
value or marketability of such Mortgaged Property, and such encumbrances do not
materially interfere with the current use or operation of the related Mortgaged
Property and, there exists with respect to such Mortgaged Property an assignment
of leases and rents provision, whether as part of the related Mortgage or as a
separate document or instrument, which establishes and creates a first priority
security interest in and to leases and rents arising in respect of the related
Mortgaged Property, subject only to encumbrances described in subsections (a),
(b) and (c) of this subparagraph (viii);
(ix) The Seller has filed and/or recorded in all appropriate public
filing and recording offices all UCC-1 financing statements necessary to create
and perfect a security interest in and lien on the items of personal property
described therein (or, if not filed and/or recorded, has submitted such UCC-1
financing statements for filing and/or recording and such UCC-1 financing
statements are in form and substance acceptable for filing and/or recording), to
the extent perfection may be effected pursuant to applicable law by recording or
filing;
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(x) All taxes and governmental assessments that prior to the Cut-off
Date became due and owing in respect of, and affect, each related Mortgaged
Property have been paid, or an escrow of funds in an amount sufficient to cover
such payments has been established;
(xi) As of the date of its origination, there was no proceeding
pending for the total or partial condemnation of each related Mortgaged Property
that materially affects the value thereof, and such Mortgaged Property was free
of material damage; and, as of the Cut-off Date, the Seller has not received any
notice of the commencement of any proceeding for the total or partial
condemnation of any related Mortgaged Property that materially affects the value
thereof, and such Mortgaged Property is free of material damage;
(xii) Each related Mortgaged Property is covered by an ALTA (or its
equivalent) lender's title insurance policy insuring that each related Mortgage
is a valid first lien on such Mortgaged Property in the original principal
amount of the Mortgage Loan or there is a binding commitment from a title
insurer qualified and licensed in the applicable jurisdiction, as required, to
issue such policy; such title insurance policy, if issued, is in full force and
effect, is freely assignable and will inure solely to the benefit of the Trustee
as mortgagee of record, or any such commitment is a legal, valid and binding
obligation of such insurer; no claims have been made under such title insurance
policy, if issued; and to the best knowledge of the Seller, no prior mortgagee
has done, by act or omission, anything which would materially impair the
coverage of any such title insurance policy;
(xiii) As of the date of its origination, all insurance required under
each related Mortgage, which insurance covered such risks as were customarily
acceptable to prudent commercial and multifamily mortgage lending institutions
lending on the security of property comparable to the related Mortgaged Property
in the jurisdiction in which such Mortgaged Property is located, and with
respect to a fire and extended perils insurance policy, was in an amount
(subject to a customary deductible) at least equal to 100% of the full insurable
replacement cost of the improvements located on such Mortgaged Property or an
amount in excess of the initial principal balance of the Mortgage Loan, together
with an "agreed value endorsement", was in full force and effect with respect to
each related Mortgaged Property; and, as of the Cut-off Date, to the best
knowledge of the Seller, all insurance required under each Mortgage, which
insurance covers such risks and is in such amounts as are customarily acceptable
to prudent commercial and multifamily mortgage lending institutions lending on
the security of property comparable to the related Mortgaged Property in the
jurisdiction in which such Mortgaged Property is located, is in full force and
effect with respect to each related Mortgaged Property; and no notice of
termination or cancellation with respect to any such insurance
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policy has been received by the Seller; except for certain amounts not greater
than amounts which would be considered prudent by an institutional commercial
mortgage lender with respect to a similar mortgage loan and which are set forth
in the related Mortgage, any insurance proceeds in respect of a casualty loss or
taking, will be applied either to the repair or restoration of all or part of
the related Mortgaged Property or the reduction of the outstanding principal
balance of the Mortgage Loan;
(xiv) Other than payments due but not yet 30 days or more delinquent,
there is, to the best of the Seller's knowledge, (A) no material default,
breach, violation or event of acceleration existing under the related Mortgage
Note or each related Mortgage, and no event which, with the passage of time or
with notice and (B) the expiration of any grace or cure period, would constitute
a material default, breach, violation or event of acceleration under any of such
documents; the Seller has not waived any other material default, breach,
violation or event of acceleration under any of such documents; and under the
terms of each Mortgage Loan, each related Mortgage Note, each related Mortgage
and the other loan documents in the related Mortgage File, no person or party
other than the mortgagee may declare an event of default or accelerate the
related indebtedness under such Mortgage Loan, Mortgage Note or Mortgage;
(xv) As of the Cut-off Date, the Mortgage Loan is not, and in the
prior 12 months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months), has not been, 30 days or more past due in
respect of any Scheduled Payment;
(xvi) Except with respect to the Mortgage Loans listed in Exhibit
I-XVI hereto which accrue interest on the basis of the actual number of days
elapsed over a 360 day year, the Mortgage Loan accrues interest (payable monthly
in arrears) at a fixed rate of interest (except with respect to ARD Loans, with
respect to which the rate at which interest accrues thereon increases after the
Anticipated Repayment Date, except with respect to the Mortgage Loans listed in
Exhibit I-XVI hereto and except in connection with the occurrence of a default
and the accrual of default interest) on the basis of a 360-day year consisting
of twelve 30-day months;
(xvii) Each related Mortgage does not provide for or permit, without
the prior written consent of the holder of the Mortgage Note, each related
Mortgaged Property to secure any other promissory note or obligation, except as
expressly described in such Mortgage and other than another Mortgage Loan in the
Trust Fund;
(xviii) Such Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Internal Revenue Code of 1986, as
amended (the "Code"). For
4
<PAGE>
this purpose, Section 860G(a)(3) of the Code shall be applied without regard to
the rule contained in Treasury Regulations Section 1.860G-2(f)(2) which treats a
defective mortgage loan as a "qualified mortgage" under certain circumstances.
Accordingly, the Seller represents and warrants that each Mortgage Loan is
directly secured by a Mortgage on a commercial property or a multifamily
residential property, and either (1) substantially all of the proceeds of such
Mortgage Loan were used to acquire, improve or protect the portion of such
commercial or multifamily residential property that consists of an interest in
real property (within the meaning of Treasury Regulations Sections 1.856-3(c)
and 1.856-3(d)) and such interest in real property was the only security for
such Mortgage Loan as of the Testing Date (as defined below), or (2) the fair
market value of the interest in real property which secures such Mortgage Loan
was at least equal to 80% of the principal amount of the Mortgage Loan (a) as of
the Testing Date, or (b) as of the Closing Date. For purposes of the previous
sentence, (1) the fair market value of the referenced interest in real property
shall first be reduced by (a) the amount of any lien on such interest in real
property that is senior to the Mortgage Loan, and (b) a proportionate amount of
any lien on such interest in real property that is on a parity with the Mortgage
Loan, and (2) the "Testing Date" shall be the date on which the referenced
Mortgage Loan was originated unless (a) such Mortgage Loan was modified after
the date of its origination in a manner that would cause a "significant
modification" of such Mortgage Loan within the meaning of Treasury Regulations
Section 1.1001-3(b), and (b) such "significant modification" did not occur at a
time when such Mortgage Loan was in default or when default with respect to such
Mortgage Loan was reasonably foreseeable. However, if the referenced Mortgage
Loan has been subjected to a "significant modification" after the date of its
origination and at a time when such Mortgage Loan was not in default or when
default with respect to such Mortgage Loan was not reasonably foreseeable, the
Testing Date shall be the date upon which the latest such "significant
modification" occurred;
(xix) Prepayment Premiums and Yield Maintenance Charges payable with
respect to the Mortgage Loan, if any, constitute "customary prepayment
penalties" within the meaning of Treasury Regulation Section 1.860G-1(b)(2);
(xx) One or more environmental site assessments were performed by an
environmental consulting firm independent of the Seller and the Seller's
affiliates with respect to each related Mortgaged Property during the 18-month
period preceding the Cut-off Date, and the Seller, having made no independent
inquiry other than to review the report(s) prepared in connection with the
assessment(s) referenced herein, has no knowledge and has received no notice of
any material and adverse environmental condition or circumstance affecting such
Mortgaged Property that was not disclosed in such report(s);
5
<PAGE>
(xxi) The related Mortgage Note, Mortgage(s) and Assignment(s) of
Leases, if any, contain customary and enforceable provisions such as to render
the rights and remedies of the holder thereof adequate for the realization
against the related Mortgaged Property or Properties of the benefits of the
security, including realization by judicial or, if applicable, non-judicial
foreclosure, subject to applicable reorganization, insolvency, moratorium and
other similar laws affecting creditors' rights generally as from time to time,
in effect, and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(xxii) To the best of the Seller's knowledge, after due inquiry, as of
the date of origination and to the actual knowledge of the Seller as of the
Cut-Off Date, the related Mortgagor is not a debtor in any bankruptcy,
reorganization, insolvency or comparable proceeding;
(xxiii) Such Mortgage Loan is secured by either a mortgage on a fee
simple interest or a leasehold estate in a commercial property or multifamily
property, including the related Mortgagor's interest in the improvements on the
related Mortgaged Property;
(xxiv) Such Mortgage Loan does not provide for negative amortization;
(xxv) Except for the Mortgage Loans listed in Exhibit I-XXV, attached
hereto (all of which are eligible to receive low-income housing tax credits
pursuant to Section 42 of the Internal Revenue Code of 1986), such Mortgage Loan
is a whole loan, contains no equity participation by the lender or shared
appreciation feature and does not provide for any contingent or additional
interest in the form of participation in the cash flow of the related Mortgaged
Property;
(xxvi) The related Mortgage contains provisions for the acceleration
of the payment of the unpaid principal balance of such Mortgage Loan if, without
the prior written consent of the mortgagee, any related Mortgaged Property or
interest therein, is directly encumbered in connection with subordinate
financing by a lien or security interest against the related Mortgaged Property;
provided, however, the Mortgage Loans listed in Exhibit I-XXVI hereto, are
encumbered by subordinated debt;
(xxvii) None of the Mortgage Loans permit one or more transfers of the
related Mortgaged Property to a person or entity without (A) the satisfaction of
certain criteria (including criteria related to bankruptcy remoteness and
property management experience) specified in the related Mortgage, and (B)
without the ability to accelerate the payment of the unpaid principal balance of
such Mortgage Loan if any related Mortgaged
6
<PAGE>
Property or interest therein is directly or indirectly transferred or sold
without the prior written consent of the mortgagee, or sold without the related
Mortgagor having satisfied certain conditions specified in the related Mortgage
with respect to permitted transfers;
(xxviii) The Mortgage Loan, together with any other Mortgage Loan made
to the same Mortgagor or to an affiliate of such Mortgagor, does not represent
more than 5% of the aggregate Initial Pool Balance;
(xxix) Except as set forth in the related Mortgage File, the terms of
the related Mortgage Note and Mortgage(s) have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded in any manner
which materially interferes with the security intended to be provided by such
Mortgage;
(xxx) Each related Mortgaged Property was inspected by or on behalf of
the related originator during the 12 month period prior to the related
origination date;
(xxxi) The terms of the related Mortgage Note or Mortgage do not
provide for the release of any material portion of the related Mortgaged
Property from the lien of such Mortgage without payment in full of the Mortgage
Loan;
(xxxii) The related Mortgagor has covenanted in the Mortgage Loan
documents to maintain the related Mortgaged Property in compliance with all
applicable laws, zoning ordinances, rules, covenants and restrictions affecting
the construction, occupancy, use and operation of such Mortgaged Property, and
the related originator performed the type of due diligence in connection with
the origination of such Mortgage Loan customarily performed by prudent
institutional commercial and multifamily mortgage lenders with respect to the
foregoing matters; the Seller has received no notice and has no actual knowledge
of any material violation of any applicable laws, zoning ordinances, rules,
covenants or restrictions affecting the construction, occupancy, use or
operation of such Mortgaged Property; to the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), as of the date of such origination, 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 lay outside
the boundaries and building restriction lines of such property to an extent
which would have a material adverse affect on the related Mortgagor's use and
operation of such Mortgaged Property (unless affirmatively covered by the title
insurance referred to in paragraph (xii) above), and no improvements on
adjoining properties encroached upon such Mortgaged Property to any material
extent;
7
<PAGE>
(xxxiii) Except with respect to Credit Lease Loans, the related
Mortgagor has covenanted in the Mortgage Loan documents to deliver each year to
the mortgagee an operating statement of each related Mortgaged Property covering
the twelve-month period identified therein;
(xxxiv) With respect to at least 95% of the Mortgage Loans (by
balance) having a Cut-off Date Balance in excess of 1% of the Initial Pool
Balance, the related Mortgagor has covenanted in its organizational documents
and/or the Mortgage Loan documents to own no significant asset other than the
related Mortgaged Property or Mortgaged Properties, as applicable, and assets
incidental to its ownership and operation of such Mortgaged Property;
(xxxv) No advance of funds has been made, directly or indirectly, by
the Seller to the Mortgagor other than pursuant to the Mortgage Note and no
funds have been received from any person other than such Mortgagor for or on
account of payments due on the Mortgage Note;
(xxxvi) To the Seller's actual knowledge, there are no pending
actions, suits or proceedings by or before any court or governmental authority
against or affecting the related Mortgagor or the related Mortgaged Property
that, if determined adversely to such Mortgagor or Mortgaged Property, would
materially and adversely affect the value of the Mortgaged Property or the
ability of the Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan;
(xxxvii) Such Mortgage Loan complied with all applicable usury laws in
effect at its date of origination;
(xxxviii) To the extent required under applicable law as of the
Closing Date, the originator of such Mortgage Loan was authorized to do business
in the jurisdiction in which the related Mortgaged Property is located at all
times when it held the Mortgage Loan to the extent necessary to ensure the
enforceability of such Mortgage Loan;
(xxxix) If the related Mortgage is a deed of trust, a trustee, duly
qualified under applicable law to serve as such, is properly designated and
serving under such Mortgage;
(xl) The related Mortgage Note is not secured by any collateral that
secures a mortgage loan that is not in the Trust Fund and each Mortgage Loan
that is cross-collateralized is cross-collateralized only with other Mortgage
Loans sold pursuant to this Agreement;
(xli) The related Mortgaged Property either is not located in a flood
hazard area as defined by the Federal Insurance Administration or is covered by
flood hazard insurance;
8
<PAGE>
(xlii) Except with respect to the Mortgage Loans listed on Exhibit
I-XLII hereto, one or more engineering assessments were performed by an
engineering consulting firm independent of the Seller and the Seller's
affiliates with respect to each related Mortgaged Property during the 18-month
period preceding the Cut-off Date, and the Seller, having made no independent
inquiry other than to review the report(s) prepared in connection with the
assessment(s) referenced herein, has no knowledge of any material and adverse
engineering condition or circumstance affecting such Mortgaged Property that was
not disclosed in such report(s);
(xliii) All escrow deposits and payments relating to the Mortgage Loan
are under control of the Seller or the servicer of such Mortgage Loan and all
amounts required as of the date hereof under the Mortgage Loan Documents to be
deposited by the related Mortgagor have been deposited;
(xliv) The related Mortgagor has represented to the Seller that as of
the date of origination of the Mortgage Loan, such Mortgagor, the related
lessee, franchisor or operator was in possession of all material licenses,
permits and authorizations then required for use of the related Mortgaged
Property, which were valid and in full force and effect;
(xlv) The origination, servicing and collection practices used by the
Seller or any prior holder of the Mortgage Note have been in all respects legal
and have met customary industry standards; and
(xlvi) Except as set forth in Schedule II, the Mortgage Loan is
secured in whole or in part by a fee simple interest.
9
<PAGE>
SCHEDULE II
Ground Lease Representations and Warranties
(i) With respect to any Mortgage Loan that is secured in whole or in
material part by the interest of a Mortgagor as a lessee under a Ground Lease
but not by the related fee interest:
(A) Such Ground Lease or a memorandum thereof has been or will be duly
recorded and such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage or, if consent of the
lessor thereunder is required, it has been obtained prior to the Closing
Date;
(B) Upon the foreclosure of the Mortgage Loan (or acceptance of a deed
in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to the Trustee without the consent of the lessor thereunder (or,
if any such consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further assignable by
the Trustee and its successors without a need to obtain the consent of such
lessor;
(C) Such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the Mortgagee thereunder
and that any such action without such consent is not binding on such
Mortgagee, its successors or assigns;
(D) Unless otherwise set forth in the Ground Lease, the Ground Lease
does not permit any increase in the amount of rent payable by the ground
lessee thereunder during the term of the Mortgage Loan;
(E) Such Ground Lease was in full force and effect as of the date of
origination of the related Mortgage Loan, and to the actual knowledge of
the Seller, at the Closing Date, such Ground Lease is in full force and
effect and other than payments due but not yet 30 days or more delinquent,
(1) there is no material default, and (2) there is no event which, with the
passage of time or with notice and the expiration of any grace or cure
period, would constitute a material default under such Ground Lease;
(F) Such Ground Lease or an estoppel or consent letter received by the
Mortgagee from the lessor, requires the lessor thereunder to give notice of
any default by the lessee to the Mortgagee; and such Ground Lease, or an
estoppel or consent letter received by the Mortgagee from the lessor,
further provides either (1) that no notice of termination given under such
Ground Lease is effective against the Mortgagee unless a copy has been
delivered to
10
<PAGE>
the Mortgagee in the manner described in such Ground Lease, estoppel or
consent letter or (2) that upon any termination of the Ground Lease the
lessor will enter into a new lease with the mortgagee;
(G) The ground lessee's interest in the Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related ground lessor's related fee
interest and any exceptions stated in the related title insurance policy or
opinion of title, which exceptions do not and will not materially and
adversely interfere with (1) the ability of the related Mortgagor timely to
pay in full the principal and interest on the related Mortgage Note, (2)
the use of such Mortgaged Property for the use currently being made
thereof, or (3) the value of the Mortgaged Property;
(H) A Mortgagee is permitted a reasonable opportunity to cure any
curable default under such Ground Lease before the lessor thereunder may
terminate such Ground Lease;
(I) Such Ground Lease has an original term (together with any
extension options, whether or not currently exercised, set forth therein)
that extends not less than 10 years beyond the Stated Maturity Date of the
related Mortgage Loan;
(J) Under the terms of such Ground Lease, any estoppel or consent
letter received by the Mortgagee from the lessor, and the related Mortgage,
taken together, any related insurance proceeds or condemnation proceeds
will be applied either to the repair or restoration of all or part of the
related Mortgaged Property, with the Mortgagee or a trustee appointed by it
having the right to hold and disburse such proceeds as the repair or
restoration progresses, or to the payment of the outstanding principal
balance of the Mortgage Loan together with any accrued interest thereon;
(K) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial
mortgage lender;
(L) The ground lessor under such Ground Lease is required to enter
into a new lease upon termination of the Ground Lease for any reason,
including the rejection of the Ground Lease in bankruptcy, and for any
reason, upon the request of the lender; and
(M) The terms of the related Ground Lease have not been waived,
modified, altered, satisfied, impaired, canceled, subordinated or rescinded
in any manner which
11
<PAGE>
materially interferes with the security intended to be provided by such
Mortgage.
(ii) With respect to Mortgage Loans secured in whole or in part by the
interest of the related mortgagor under a Ground Lease and by the related fee
interest, such fee interest is subject, and subordinated of record, to the
related Mortgage, and such Mortgage does not by its terms provide that it will
be subordinated to the lien of any other mortgage or other lien upon such fee
interest.
12
<PAGE>
SCHEDULE III
Health Care Facility Representations and Warranties
With respect to any Mortgage Loan that is secured in whole or in part
by a Mortgage Property which is operated as a residential health care facility
(a "Facility");
(A) All governmental licenses, permits, regulatory agreements or other
approvals or agreements necessary for the use and operation of each
Facility as intended are held by the related Mortgagor or the operator of
the Facility, and are in full force and effect, including, without
limitation, a valid certificate of need ("CON") or similar certificate,
license, or approval issued by the applicable department of health for the
requisite number of beds, and approved provider status in any approved
provider payment program (collectively, the "Licenses").
(B) The Licenses (1) may not be, and have not been, transferred to any
location other than the Facility; (2) have not been pledged as collateral
security for any other loan or indebtedness; and (3) are held free from
restrictions or known conflicts which would materially impair the use or
operation of the Facility as intended, and are not provisional,
probationary or restricted in any way.
(C) As of the Cut-off Date and to Seller's knowledge, without inquiry,
(1) as of the Cut-off Date, the Facility has not received a "Level A" (or
equivalent) violation which has not been cured to the satisfaction of the
applicable governmental agency, and (2) no statement of charges or
deficiencies has been made or penalty enforcement action has been
undertaken against the Facility, its operator or the Mortgagor or against
any officer, director or stockholder of such operator or the Mortgagor by
any governmental agency during the last three calendar years, and there
have been no violations over the past three years which have threatened the
Facility's, the operator's or the Mortgagor's certification for
participation in Medicare or Medicaid or the other third-party payors'
programs.
13
<PAGE>
SCHEDULE IV
Credit Lease Loan Representations and Warranties
With respect to any Mortgage Loan that is a Credit Lease Loan;
(A) The lease payments due under the related Credit Lease, together
with any escrow payments held by the Seller or its designee, are equal to
or greater than the payments due with respect to the related Mortgage Loan;
(B) Except with respect to Credit Lease Loans as indicated in Exhibit
IV-B hereto, the Mortgagor does not have monetary obligations under the
related Credit Lease, and every monetary obligation associated with
managing, owning, developing and operating the leased property, including,
but not limited to, the costs associated with utilities, taxes, insurance,
maintenance and repairs is an obligation of the related Tenant;
(C) Except with respect to the Mortgage Loans listed in Exhibit IV-C
hereto, the Mortgagor does not have any nonmonetary obligations under the
related Credit Lease, except for the delivery of possession of the leased
property;
(D) Except with respect to the Credit Lease Loans listed in Exhibit
IV-D hereto, the Mortgagor has not made any representation or warranty in
the related Credit Lease, a breach of which would result in the termination
of, or an offset or abatement with respect to, such Credit Lease;
(E) The related Tenant cannot terminate such Credit Lease for any
reason prior to the payment in full of: (a) the principal balance of the
related Mortgage Loan; (b) all accrued and unpaid interest on such Mortgage
Loan; and (c) any other sums due and payable under such Mortgage Loan, as
of the termination date, which date is a rent payment date, except for a
material default by the related Mortgagor under the Credit Lease or due to
a casualty or condemnation event, in which case, a Lease Enhancement Policy
insures against such risk;
(F) In the event the related Tenant assigns or sublets the related
leased property, such Tenant (and if applicable, the related guarantor)
remains obligated under the related Credit Lease;
(G) Each property related to a Credit Lease Loan is a separate tax
lot;
14
<PAGE>
(H) The related Tenant has agreed to indemnify the Mortgagor from any
claims of any nature (a) to which the Mortgagor is subject because of such
Mortgagor's estate in the leased property, or (b) arising from (i) injury
to or death of any person or damage to or loss of property on the leased
property or connected with the use, condition or occupancy of the leased
property, (ii) Tenant's violation of the related Credit Lease, or (iii) any
act or omission of the Tenant;
(I) The related Tenant has agreed to indemnify the Mortgagor from any
claims of any nature arising as a result of any hazardous material
affecting the leased property and due to such Tenant's use of the leased
property;
(J) In connection with Credit Lease Loans with respect to which a
Guaranty exists, the related guarantor guarantees the payment due under the
related Credit Lease and such Guaranty, on its face, contains no conditions
to such payment;
(K) With respect to Credit Lease Loans that have the benefit of
residual value insurance policies, surety value policies and lease
enhancement policies, each such policy has been obtained, and with respect
to the Credit Leases other than bond-type leases, the required premiums
have been paid; and
(L) The list of lease guarantors, if any, attached as Exhibit IV-L
hereto, is accurate in all material respects.
15
<PAGE>
EXCEPTION EXHIBITS
<PAGE>
GENERAL REPS
EXHIBIT I-XVI
CONTROL
NUMBER PROPERTY NAME
10000 1021/1101/1103-1137/1200 Lawrence; 1200 Clement
10003 131-133 Norwood Street
10004 415-417 Davis; 527-529 Fairfax
10019 Royal Palms
20007 CVS/Revco Drugstore
20022 Lincoln Park West
20025 Midtown Market Shopping Center
20037 St. Johns Village
20042 Towamencin Shopping Village
9821000 Arrowhead Apartments
9821001 Brookstone Manor
9821002 Boca Winds
9821003 Hulen Gardens
9821004 Lexington Downs
9821005 Saddle Club
9821007 Convent Ave.
9821009 Duval Manor Associates
9821011 Hilltop Apartments
9821013 Azalea Apartments
9821014 Signal Hill Apartments
9821015 English Garden Apartments
9821020 Santa Barbara Apartments
9821021 Villa East
9821022 Winterfield
9821023 Sharon Arms
9821024 Granville Apts.
9821025 Milton Road
9821026 2420 Roswell
9821027 Abbey Apts.
9821028 Silver Blue Lake
9821029 Spanish Oaks
9821030 Sutton Plaza
9821031 The Pines at Carolina Place Apartments
9821034 Moorings Apartments
9821037 Silver Hill Apartments
9821038 Thrippence
9821039 Cohannet Village
9821040 Westgate Apartments
9821041 112, 114, 116,120 Strawberry Hill Road
9821045 Sand Cove Apartments
9821046 Kirnwood
9821048 Gardenwood
9821049 Hamilton
9821050 The Meadows at Indian Creek
9821051 Pointe North Apartments
9821052 Welby Park Estates
9821053 Lakeview Townhomes
9821054 Fox Run
9821056 Rene Village
9821058 103 Hemenway
9821059 Vista Bonita Apartments
9821060 Vintage Square Apartments
9821061 Naples Place
9821062 Gardena West Partnership
9821063 Sugarloaf Estates
9821064 The Lenox
9821065 Park South Apartments
9821066 Southern Pines
9821067 Park Lee Apartments
9821068 The Landings
9821069 Scarborough Mews
9821071 Arbor Apartments
9821072 825 & 835 Wisconsin Avenue
9821074 Hilltop House Apartments
9821075 Marlaine North & South Apartments
9821076 Vandermere Mobile Home Park
9821081 Southampton Apartments
9821082 Salem Pines Apartments
<PAGE>
GENERAL REPS
EXHIBIT I-XVI
CONTROL
NUMBER PROPERTY NAME
9821097 Forest Towers
9821098 Park Regency Apartments
9821099 Harbour Key Apartments
9821100 Royal Palm Key Apartments
9821101 Coral Key Apartments
9821102 Planters Crossing
9821107 Sprucemont Apartments
9821109 Birchwood Apartments
9821111 Hamiltonian Gardens
9821112 Woodbine Gardens
9821115 Tennessee Village Apartments
9821121 Country Club Estates
9821122 Butler Ridge/Butler Arms
9821124 Briarwood
9821125 Deville
9821126 The Highlands
9821130 Shelbourne Towers
9821133 Coopers Pond Apts.
9821142 Timber Trails
9821143 Turtle Creek Apts.
9821144 321 East 22nd Street
9821145 Turnberry Towers
9821146 Dutch Village Apartments
9821149 Greenlawn Apartments
9821150 New Meadowbrook Village
9821151 Ridgewood Apartments
9821152 Elms Apartment House
9821154 Westgrove Apartments
9821155 Castilian Lake Park Apartments
9821156 29 Cornelia Street
9822000 Gaston Manor
9822001 Gastonia Village
9822003 Hickory Manor
9822004 Haws Memorial Nursing Home
9822005 Ashwood Place
9822007 Empire Medical Building
9822012 AmeriHost Inn / Athens
9822014 Westlake Village Inn
9822015 Round Grove Crossing Shopping Center / Park Lane Village
9822016 Cabin John Mall and Shopping Center
9822017 Tower Plaza
9822018 Chapel Trail Commerce Center
9822026 Sack And Save Grocery
9822029 Layton Crossing Shopping Center
9822030 Inland Empire Center
9822031 Wilson Square Shopping Center
9822032 Gateway Shopping Center
9822033 Prince George's Metro Center
9822034 Fairfield Inn by Marriott-East
9822035 The Money Store
9822036 Best Buy store # 545
9822037 McAllen Embassy Suites
9822038 Holiday Inn Express
9822039 Redwood Heights
9822041 The Crossings at Akers Mill
9822042 Meadows Mall
9822043 Woodmont Corner
9822044 2995 Baseline Office Building
9822045 Marina Shores Shoppes
9822046 925 Bryant Street
9822047 Comcast Data Center
9822048 Abercorn Street Building
9822049 Holiday Inn - Bethlehem
9822050 Bethlehem Hampton Inn & Suite
9822051 Gwinnett Place Shoppes
9822053 La Cresta Shopping Center/Self Storage
9822056 Grandview Plaza
9822058 Oak Knoll Nursing & Rehab Center
<PAGE>
GENERAL REPS
EXHIBIT I-XVI
CONTROL
NUMBER PROPERTY NAME
9822059 EZ8 Motel (Good Nite Inn)
9822060 48th Executive Court
9822061 Gateway Plaza
9822062 9201 Fourth Avenue
9822063 Fresh Warehousing
9822064 7 Perimeter Road
9822065 Centre at Woodstock
9822066 Lake Placid Inn & Conference Center
9822067 Fairfield Inn - Chester
9822068 The Millenium Building
9822069 Eckerd Drugstore
9822070 Comfort Inn Max Meadows
9822072 1025 W. St. Georges Avenue
9822074 Southeastern Eye Center Roll Up
9822075 Valley East Plaza
9822078 Warner Self Storage
9822079 F & W Office Park - Bldg. F
9822080 Hampton Inn Miami Airport West
9822082 Ramada Limited Biloxi
9822083 Hampton Inn-Airport
9822085 Briarwood Healthcare Center
9822087 New Brighton Manor
9822089 Best Western Inn at Chimney Hill
9822090 8578 Santa Monica Blvd
9822092 Piggly Wiggly
9822120 Best Western Mayfair Hotel
9822122 Gateway Plaza-Las Vegas
9822123 Bennington Square Shopping Center
9822124 Boykin Center
9822126 Colonial Health Care and Southdale Health Care Centers
9822127 One Capital City Plaza
9822128 Leesburg Plaza Shopping Center
9822131 Best Western Staunton Inn
9822132 Best Western Inn @ Valley View
9822133 Comfort Inn - Lexington
9822134 Comfort Inn Troutville
9822140 Days Inn Oceanside
9822141 Holiday Inn Express
9822143 Best Western Inn @ Hunt Ridge
9822145 Hazel Mini Storage
9822146 Panama City Square Shopping Center
9822147 Stratford Square Shopping Center
9822149 Dyersburg Mall
9822150 Madison Square Shopping Center
9822152 Natchez Mall
9822156 Town West Plaza
9822167 Chesapeake Station
9822174 Michigan Marketplace
9822176 Shoppes at Home Depot
9822183 Rainbow Express Village Center
9822185 Sun Center
9822187 Days Inn Central
9822188 Holiday Inn Rocky Mount
9822189 4600 N. Harlem
9822191 Grass Valley Shopping Center
9822192 Grandview Plaza Office Building
<PAGE>
GENERAL REPS
EXHIBIT I-XXV
CONTROL
NUMBER PROPERTY NAME
9821042 Ashton Pointe/Evergreen
9821016 Little Lotts Creek
9821044 Ashton Pines/Sugar Mill
9821012 Knollwood Apartments
9821018 Pendelton Pines
9821010 Greenridge Apartments
<PAGE>
GENERAL REPS
EXHIBIT I-XXVI
CONTROL
NUMBER PROPERTY NAME
9821068 The Landings
<PAGE>
GENERAL REPS
EXHIBIT I-XLII
CONTROL
NUMBER PROPERTY NAME ENGIN DATE
9821068 The Landings
20025 Midtown Market Shopping Center
30092 Walgreen Pembroke Pines Pines Boulevard
9821006 Clarinbridge
9821010 Greenridge Apartments
9821012 Knollwood Apartments
9821016 Little Lotts Creek
9821030 Sutton Plaza
9821042 Ashton Pointe/Evergreen
9821044 Ashton Pines/Sugar Mill
9821046 Kirnwood
9821109 Birchwood Apartments
9821142 Timber Trails
9822047 Comcast Data Center
9822069 Eckerd Drugstore
9823000 CVS Waltham Main
9823009 Rite Aid Dover
9823010 Rite Aid Littleton
9823012 Rite Aid Louisville - Taylor & Bluegrass
9823026 Rite Aid - Citrus Heights
9823028 Rite Aid - Portland
9823033 CVS York Richland
9823035 Edwards Supermarket - Teaneck
9823082 Rite Aid Norfolk
9823094 Eckerd Pompano Sample
9823097 IHOP Douglasville Douglas Blvd
9823101 CVS Rochester Henrietta
9823109 Rite Aid - Dixie Highway, Lousiville
9823114 Rite Aid Battle Creek
9823115 Rite Aid Saginaw Genesee
9821031 The Pines at Carolina Place Apartments
The above Loans are either newly constructed or have been substantially
renovated in the last 18 months.
9823118 Sears Union Center Island N/A
An engineering report was not necessitated in connection with this Loan because
First Union financed the ground lessor's interest in the fee and not the
improvements thereon.
9822032 Gateway Shopping Center 2/24/97
9821018 Pendelton Pines 3/15/96
<PAGE>
EXHIBIT IV-B
CONTROL
NUMBER PROPERTY NAME
9823033 CVS York Richland
9823098 Bunzl Hicksville Duffy
9823099 CVS Columbia Sparkleberry
9823102 Lowes Hattiesburg Weathersby
9823114 Rite Aid Battle Creek
9823115 Rite Aid Saginaw Genesee
9823113 Eckerd - Charlotte - Harris Blvd
30092 Walgreen Pembroke Pines Pines Boulevard
9823000 CVS Waltham Main
9823030 Walgreens Ft Worth
9823031 Walgreen Jacksonville St Augustine
9823032 Walgreen Melbourne Wickham
9823094 Eckerd Pompano Sample
9823101 CVS Rochester Henrietta
9823121 Walgreen Hialeah 4th Ave
30013 Lowes Queensbury
<PAGE>
EXHIBIT IV-C
CONTROL
NUMBER PROPERTY NAME
9823033 CVS York Richland
9823035 Edwards Supermarket - Teaneck
9823098 Bunzl Hicksville Duffy
9823099 CVS Columbia Sparkleberry
9823102 Lowes Hattiesburg Weathersby
9823114 Rite Aid Battle Creek
9823115 Rite Aid Saginaw Genesee
9823113 Eckerd - Charlotte - Harris Blvd
30092 Walgreen Pembroke Pines Pines Boulevard
9823000 CVS Waltham Main
9823030 Walgreens Ft Worth
9823031 Walgreen Jacksonville St Augustine
9823032 Walgreen Melbourne Wickham
9823094 Eckerd Pompano Sample
9823101 CVS Rochester Henrietta
9823121 Walgreen Hialeah 4th Ave
30013 Lowes Queensbury
9823097 IHOP Douglasville Douglas Blvd
9823118 Sears Union Center Island
<PAGE>
EXHIBIT IV-D
CONTROL
NUMBER PROPERTY NAME
9823033 CVS York Richland
9823035 Edwards Supermarket - Teaneck
9823098 Bunzl Hicksville Duffy
9823099 CVS Columbia Sparkleberry
9823102 Lowes Hattiesburg Weathersby
9823114 Rite Aid Battle Creek
9823115 Rite Aid Saginaw Genesee
9823113 Eckerd - Charlotte - Harris Blvd
30092 Walgreen Pembroke Pines Pines Boulevard
9823000 CVS Waltham Main
9823030 Walgreens Ft Worth
9823031 Walgreen Jacksonville St Augustine
9823032 Walgreen Melbourne Wickham
9823094 Eckerd Pompano Sample
9823101 CVS Rochester Henrietta
9823121 Walgreen Hialeah 4th Ave
30013 Lowes Queensbury
9823097 IHOP Douglasville Douglas Blvd
9823118 Sears Union Center Island
<PAGE>
DEALS WITH RVI
CONTROL
NUMBER PROPERTY NAME HAVE RVI BALLOON AMOUNT
9823009 Rite Aid Dover Y 810,000.00
9823010 Rite Aid Littleton Y 974,998.06
9823012 Rite Aid Louisville - Taylor & Bluegrass Y 719,996.36
9823026 Rite Aid - Citrus Heights Y 1,577,999.59
9823028 Rite Aid - Portland Y 804,999.14
9823035 Edwards Supermarket - Teaneck Y 2,895,819.00
9823042 Motel 6 1118 Austin AP Y 1,938,020.12
9823054 Motel 6 1261 Houston - Spring Y 1,132,852.34
9823069 Motel 6 1273 Portland Y 1,522,953.01
9823072 Motel 6 352 Rapid City Y 1,132,852.34
9823074 Motel 6 134 San Antonio (N) Y 864,463.08
9823076 Motel 6 284 South Deerfield Y 1,089,161.07
9823082 Rite Aid Norfolk Y 969,498.36
9823098 Bunzl Hicksville Duffy Y 2,103,921.00
9823109 Rite Aid - Dixie Highway, Lousiville Y 909,999.05
30092 Walgreen Pembroke Pines Pines Boulevard Y 811,888.11
9823094 Eckerd Pompano Sample Y 657,631.62
9823121 Walgreen Hialeah 4th Ave Y 777,284.74
30013 Lowe's Y 3,657,407.47
<PAGE>
EXHIBIT IV-L
CONTROL LEASE GUARANTOR -
NUMBER PROPERTY NAME CTL ONLY
9823009 Rite Aid Dover Rite Aid Corp.
9823010 Rite Aid Littleton Rite Aid Corp.
9823012 Rite Aid Louisville - Taylor & Bluegrass Rite Aid Corp.
9823026 Rite Aid - Citrus Heights Rite Aid Corp.
9823028 Rite Aid - Portland Rite Aid Corp.
9823033 CVS York Richland CVS Corp.
9823035 Edwards Supermarket - Teaneck A-Hold
9823042 Motel 6 1118 Austin AP Accor SA
9823054 Motel 6 1261 Houston - Spring Accor SA
9823069 Motel 6 1273 Portland Accor SA
9823072 Motel 6 352 Rapid City Accor SA
9823074 Motel 6 134 San Antonio (N) Accor SA
9823076 Motel 6 284 South Deerfield Accor SA
9823082 Rite Aid Norfolk Rite Aid Corp.
9823098 Bunzl Hicksville Duffy Bunzl USA, Inc.
9823099 CVS Columbia Sparkleberry CVS Corp.
9823102 Lowes Hattiesburg Weathersby Lowe's Companies, Inc
9823109 Rite Aid - Dixie Highway, Lousiville Rite Aid Corp.
9823114 Rite Aid Battle Creek Rite Aid Corp.
9823115 Rite Aid Saginaw Genesee Rite Aid Corp.
9823000 CVS Waltham Main CVS Corp
9823101 CVS Rochester Henrietta CVS Corporation
30013 Lowes Queensbury Lowe's Companies, Inc
9823097 IHOP Douglasville Douglas Blvd IHOP Corp
9823118 Sears Union Center Island Sears, Roebuck and Co.
<PAGE>
Exhibit A
Mortgage Loan Schedule
<PAGE>
<TABLE>
<CAPTION>
Control
Number Property Name Address
==============================================================================================================================
<S> <C> <C>
10000 1021/1101/1103-1137/1200 Lawrence; 1200 Clement 1021/1101/1103-1137/1200 Lawrence; 1200 Clement
10003 131-133 Norwood Street 131-133 Norwood Street
10004 415-417 Davis; 527-529 Fairfax 415-417 Davis; 527-529 Fairfax
10019 Royal Palms 40890 Sandy Gale Lane
20007 CVS/Revco Drugstore West Main Street
20022 Lincoln Park West 7738-7853 N.W. 44th St
20025 Midtown Market Shopping Center 764 Airport Rd.
20037 St. Johns Village 10771 Beach Blvd
20042 Towamencin Shopping Village 1758 Allentown Rd.
30013 Lowe's Queensbury NEC of Bay & Quaker Roads
30092 Walgreen Pembroke Pines Pines Boulevard 15911 Pines Boulevard
9821000 Arrowhead Apartments 1912 Cambridge Drive
9821001 Brookstone Manor 135 Elm Street
9821002 Boca Winds 530 N.E. 47th Street
9821003 Hulen Gardens 7415 Tallow Wind Trail
9821004 Lexington Downs 6003 Old Bullard Road
9821005 Saddle Club 3730 South Mill Avenue
9821006 Clarinbridge 770 Towne Green Boulevard
9821007 Convent Ave. 90-100 Convent Avenue
9821009 Duval Manor Associates 6350 Greene Street
9821010 Greenridge Apartments 2045 Highway 41 South
9821011 Hilltop Apartments 908-916 Eastern Avenue, NE
9821012 Knollwood Apartments 205 Old Hull Road
9821013 Azalea Apartments 431 Block Craighead Road
9821014 Signal Hill Apartments 138-102 Signal Hill Drive
9821015 English Garden Apartments 500 West Craighead Road
9821016 Little Lotts Creek 14 East Jones Avenue
9821018 Pendelton Pines 2305 Pendelton Street
9821020 Santa Barbara Apartments 9955 Club Creek
9821021 Villa East 2121 Village Lake Drive
9821022 Winterfield 3509 Burner Drive
9821023 Sharon Arms 4313 Colwick Road
9821024 Granville Apts. 3730 N. Sharon Amity
9821025 Milton Road 1951 Milton Road
9821026 2420 Roswell 2420 Roswell Avenue
9821027 Abbey Apts. 1415 Abbey Place
9821028 Silver Blue Lake 1301 - 1601 NW 103rd Street
9821029 Spanish Oaks 7557 Arlington Expressway
9821030 Sutton Plaza 1230 13th Street, NW
9821031 The Pines at Carolina Place Apartments 12600 Windy Pines Way
9821034 Moorings Apartments 571 Plum Grove Road
9821037 Silver Hill Apartments 4227 Silver Hill Road
9821038 Thrippence 3623 Fountain Avenue
9821039 Cohannet Village 203 - 207 Winthrop Street
9821040 Westgate Apartments 550 Lawrenceville Road
9821041 112, 114, 116,120 Strawberry Hill Road 112-116-120 Strawberry Hill Road
9821042 Ashton Pointe/Evergreen 400 Plaza Trace
9821044 Ashton Pines/Sugar Mill 115 Colerain Road
9821045 Sand Cove Apartments 3813 Gulf Blvd
9821046 Kirnwood 2600 Bolton Boone Drive
9821048 Gardenwood 1110 Garden Walk Boulevard
9821049 Hamilton (5) 1255 New Hampshire Avenue
9821050 The Meadows at Indian Creek 100 Eagle Drive
<CAPTION>
Remaining
Term to
Control Cut-Off Date Monthly Mortgage Maturity Maturity
Number City State Zip Code Balance ($) Debt Service Rate (%) (Mos.) Date
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
10000 Radford VA 24141 2,325,807.83 15,291.75 6.875% 119 11/01/08
10003 Radford VA 24141 854,378.38 5,617.38 6.875% 119 11/01/08
10004 Radford VA 24141 1,234,102.11 8,113.99 6.875% 119 11/01/08
10019 Palm Desert CA 92211 3,444,718.22 22,422.52 6.770% 118 10/01/08
20007 Haw River NC 27258 1,123,217.57 7,203.50 6.625% 118 10/01/08
20022 Sunrise FL 33351 11,748,176.20 78,339.37 7.000% 117 09/01/08
20025 Chapel Hill NC 27514 2,797,758.66 18,854.67 7.120% 179 11/01/13
20037 Jacksonville FL 33612 3,577,531.34 31,981.62 6.813% 118 10/01/08
20042 Lansdale PA 19446 10,186,378.87 68,871.13 6.500% 119 11/01/08
30013 Queensbury NY 12801 11,649,157.48 84,757.90 7.125% 236 08/01/18
30092 Pembroke Pines FL 33029 2,734,176.86 18,909.76 6.500% 234 06/01/18
9821000 Palantine IL 60074 6,969,355.30 46,665.24 7.020% 114 6/1/08
9821001 Milford NH 03055 2,865,284.01 19,064.10 6.950% 113 5/1/08
9821002 Boca Raton FL 33431 2,487,225.71 16,548.70 6.950% 113 5/1/08
9821003 Ft. Worth TX 76133 3,939,765.49 26,213.14 6.950% 113 5/1/08
9821004 Tyler TX 75703 6,925,135.27 46,445.37 7.030% 113 5/1/08
9821005 Tempe AZ 85282 16,788,773.52 111,703.71 6.950% 113 5/1/08
9821006 Kennesaw GA 30144 19,500,000.05 113,425.00 6.980% 174 6/1/13
9821007 New York NY 10027 796,208.60 5,457.41 7.250% 113 5/1/08
9821009 Philadelphia PA 19144 3,883,537.98 26,393.58 7.170% 114 6/1/08
9821010 Greenbrier TN 37073 3,066,316.05 23,410.23 8.375% 353 5/1/28
9821011 Washington DC 20019 1,987,968.37 14,001.60 7.250% 113 5/1/08
9821012 Athens GA 30603 1,268,337.23 9,578.65 8.250% 292 4/1/23
9821013 Charlotte NC 28206 1,133,853.34 8,078.49 7.000% 293 5/1/23
9821014 Statesville NC 28625 2,975,993.03 21,203.38 7.000% 293 5/1/23
9821015 Charlotte NC 28206 1,922,491.51 13,697.38 7.000% 293 5/1/23
9821016 Statesboro GA 30458 1,302,330.41 9,949.35 8.375% 292 4/1/23
9821018 Memphis TN 38114 1,621,789.78 13,835.65 9.125% 293 5/1/23
9821020 Houston TX 77036 1,788,094.10 13,010.52 7.250% 114 6/1/08
9821021 Charlotte NC 28212 2,389,968.39 16,307.17 7.210% 174 6/1/13
9821022 Charlotte NC 28205 1,481,780.43 10,110.44 7.210% 174 6/1/13
9821023 Charlotte NC 28211 764,789.91 5,218.29 7.210% 174 6/1/13
9821024 Charlotte NC 28205 2,931,694.57 20,003.46 7.210% 174 6/1/13
9821025 Charlotte NC 28215 4,033,071.71 27,518.34 7.210% 174 6/1/13
9821026 Charlotte NC 28209 1,361,397.75 9,281.50 7.210% 175 7/1/13
9821027 Charlotte NC 28209 3,469,437.47 23,672.57 7.210% 174 6/1/13
9821028 Miami FL 33147 3,829,086.01 26,229.68 7.250% 114 6/1/08
9821029 Jacksonville FL 32211 3,545,046.54 24,140.77 7.190% 114 6/1/08
9821030 Washington DC 20005 4,978,661.51 33,685.93 7.125% 114 6/1/08
9821031 Pineville NC 28288 5,672,117.91 38,401.96 7.125% 173 5/1/13
9821034 Roselle IL 60172 8,263,664.14 55,331.64 7.020% 114 6/1/08
9821037 Suitland MD 20746 4,180,095.23 28,651.40 7.250% 113 5/1/08
9821038 Chattanooga TN 37412 2,239,080.87 15,595.38 7.420% 114 6/1/08
9821039 Taunton MA 02780 2,549,074.74 17,247.19 7.125% 174 6/1/13
9821040 Lawrenceville NJ 08648 2,845,305.05 19,251.51 7.125% 174 6/1/13
9821041 Stamford CT 06902 3,587,995.99 24,558.35 7.250% 115 7/1/08
9821042 Monroe GA 30655 988,533.60 7,825.33 8.780% 354 6/1/28
9821044 St. Mary's GA 31558 1,345,130.84 10,500.16 8.625% 354 6/1/28
9821045 St. Petersburg FL 33706 2,730,260.34 18,229.29 7.000% 115 7/1/08
9821046 Desoto TX 75115 4,140,244.11 31,909.91 8.500% 211 7/1/16
9821048 Atlanta GA 30349 15,500,000.00 88,802.08 6.875% 115 7/1/08
9821049 Washington DC 20036 16,336,417.51 105,282.24 6.650% 115 7/1/08
9821050 Emmaus PA 18049 13,150,062.23 85,614.95 6.750% 115 7/1/08
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Control
Number Property Name Address
==========================================================================================================================
<S> <C> <C>
9821051 Pointe North Apartments 4445 Harriet Lane
9821052 Welby Park Estates 1399 Phillips Road
9821053 Lakeview Townhomes 4811 Likins Circle
9821054 Fox Run 2601 South S.E. Loop
9821056 Rene Village 606 SE Rene Ave
9821057 Kelton Towers 515 Kelton Avenue
9821058 103 Hemenway 103 Hemenway Street
9821059 Vista Bonita Apartments 9313 Tally Ho Road
9821060 Vintage Square Apartments 1176 Rosemarie Lane
9821061 Naples Place 1900-2052 Sunshine Blvd.
9821062 Gardena West Partnership 1261 - 1281 W. Rosecrans Ave.
9821063 Sugarloaf Estates 28 River Road
9821064 The Lenox 6014 Winsome Lane
9821065 Park South Apartments Park South Boulevard
9821066 Southern Pines 15373 St. Charles St.
9821067 Park Lee Apartments 1600 West Highland Avenue
9821068 The Landings 951-969 Wilcox Street
9821069 Scarborough Mews 5th & Orange Streets
9821071 Arbor Apartments 2411 Southwest 35th Place
9821072 825 & 835 Wisconsin Avenue 825 & 835 Wisconsin Avenue
9821074 Hilltop House Apartments 1200 N. Queen Street
9821075 Marlaine North & South Apartments 1201-1203,1225 N. Pierce Street
9821076 Vandermere Mobile Home Park Old Pactolus Road
9821081 Southampton Apartments 1400 Henderson Road
9821082 Salem Pines Apartments 1904 East Mulberry Street
9821097 Forest Towers 3500 and 3550 Washington
9821098 Park Regency Apartments 130 Van Cortlandt Avenue
9821099 Harbour Key Apartments 5749 Gatlin Avenue
9821100 Royal Palm Key Apartments 1401 Village Boulevard
9821101 Coral Key Apartments 3300 Pinewalk Drive North
9821102 Planters Crossing 1447 Stone Rd.
9821103 Rochester Apartments 10933 Rochester Avenue
9821104 11640 Kiowa Avenue 11640 Kiowa Avenue
9821105 The Carlton Apartment Building 11666 Goshen Ave.
9821107 Sprucemont Apartments 257 South 16th St.
9821109 Birchwood Apartments 4829 Coles Manor Place
9821111 Hamiltonian Gardens Warrenville Road
9821112 Woodbine Gardens 1 Woodbine Road
9821115 Tennessee Village Apartments 4404 Tennessee Avenue
9821121 Country Club Estates 413 West 11th Street
9821122 Butler Ridge/Butler Arms Roll-Up 1607 Route 23/115-129 Booton Ave.
9821122.1 Butler Arms 115-129 Booton Avenue
9821122.2 Butler Ridge 1607 Route 23
9821124 Briarwood 1355 Briarwood Road
9821125 Deville 3330 Atlanta Road
9821126 The Highlands 2525 Ward Street
9821130 Shelbourne Towers 860 Twentieth Street
9821133 Coopers Pond Apts. 543 Cricklewood Drive
9821142 Timber Trails 3321 Franklin Street
9821143 Turtle Creek Apts. 358 Toftrees Ave
9821144 321 East 22nd Street 321 East 22nd Street
9821145 Turnberry Towers 1438 Third Avenue
9821146 Dutch Village Apartments 2348 Perring Manor Rd.
<CAPTION>
Remaining
Term to
Control Cut-Off Date Monthly Mortgage Maturity Maturity
Number City State Zip Code Balance ($) Debt Service Rate (%) (Mos.) Date
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
9821051 Bethlehem PA 18017 12,751,575.48 83,020.56 6.750% 115 7/1/08
9821052 New Bedford MA 02745 3,308,228.46 22,110.34 7.010% 115 7/1/08
9821053 Wichita Falls TX 76308 2,949,478.36 19,692.95 7.000% 115 7/1/08
9821054 Tyler TX 75701 2,092,554.12 13,985.46 7.010% 115 7/1/08
9821056 Gresham OR 97030 1,097,564.17 7,410.90 7.125% 117 9/1/08
9821057 Westwood CA 90024 8,471,189.59 55,838.95 6.875% 296 8/1/23
9821058 Boston MA 02115 1,979,214.93 13,206.25 7.000% 116 8/1/08
9821059 Houston TX 77017 1,146,648.42 7,650.98 7.000% 116 8/1/08
9821060 Stockton CA 95207 2,567,706.03 17,334.35 7.117% 176 8/1/13
9821061 Naples FL 34116 2,990,827.04 19,557.76 6.800% 116 8/1/08
9821062 Gardena CA 90247 2,855,387.92 18,804.87 6.870% 116 8/1/08
9821063 Sunderland MA 01375 7,613,799.44 50,853.79 7.010% 116 8/1/08
9821064 Houston TX 77057 3,874,702.01 25,879.76 7.010% 116 8/1/08
9821065 Arden NC 28704 1,540,391.71 11,195.07 7.875% 116 8/1/08
9821066 Gulfport MS 39503 2,505,693.83 16,735.93 7.010% 116 8/1/08
9821067 Phoenix AZ 85015 12,203,457.66 80,612.66 6.900% 116 8/1/08
9821068 Waupun WI 53963 1,227,472.28 9,327.19 8.350% 212 8/1/16
9821069 Media PA 19063 877,435.32 5,854.66 7.000% 176 8/1/13
9821071 Gainesville FL 32608 1,994,449.10 13,575.76 7.200% 116 8/1/08
9821072 Oshkosh WI 54901 1,171,678.20 7,916.19 7.125% 116 8/1/08
9821074 Arlington VA 22209 1,646,134.16 10,839.33 6.875% 117 9/1/08
9821075 Arlington VA 22209 2,045,197.00 13,467.04 6.875% 117 9/1/08
9821076 Greenville NC 27834 996,621.61 7,228.07 7.250% 117 9/1/08
9821081 Angleton TX 77515 2,510,268.49 16,739.01 7.000% 117 9/1/08
9821082 Angleton TX 77515 2,179,024.78 14,530.21 7.000% 117 9/1/08
9821097 Hollywood FL 33021 5,985,545.34 38,915.89 6.750% 177 9/1/13
9821098 Bronx NY 10463 1,297,038.57 8,648.93 7.000% 117 9/1/08
9821099 Orlando FL 32822 16,100,195.72 104,586.44 6.750% 118 10/1/08
9821100 West Palm Beach FL 33409 18,172,003.85 118,044.85 6.750% 118 10/1/08
9821101 Margate FL 33063 16,774,157.40 108,964.48 6.750% 118 10/1/08
9821102 Tallahassee FL 32303 3,990,628.30 26,277.15 6.875% 177 9/1/13
9821103 Los Angeles CA 90024 8,280,000.51 47,955.00 6.950% 118 10/1/08
9821104 Los Angeles CA 90049 4,639,999.57 26,873.33 6.950% 118 10/1/08
9821105 Los Angeles CA 90049 7,079,999.73 41,005.00 6.950% 118 10/1/08
9821107 Philadelphia PA 19109 1,494,589.33 10,482.38 6.875% 117 9/1/08
9821109 Dallas TX 75204 4,697,111.47 35,906.03 8.430% 215 11/1/16
9821111 Middlesex NJ 08846 3,989,331.34 26,078.56 6.125% 118 10/1/08
9821112 Avenel NJ 07001 1,994,665.67 13,039.28 6.125% 118 10/1/08
9821115 Nashville TN 37209 2,693,313.21 17,288.40 6.625% 117 9/1/08
9821121 Alexandria IN 46001 2,306,438.20 14,967.26 6.740% 118 10/1/08
9821122 Butler NJ 07405 8,978,913.67 59,123.59 6.875% 117 9/1/08
9821122.1 Butler NJ 07405 0
9821122.2 Butler NJ 07405 0
9821124 Atlanta GA 30319 5,242,623.62 35,370.22 7.125% 118 10/1/08
9821125 Smyrna GA 30080 4,393,817.87 29,643.62 7.125% 118 10/1/08
9821126 Smyrna GA 30080 3,994,379.90 26,948.74 7.125% 118 10/1/08
9821130 Knoxville TN 37916 2,543,774.59 16,437.68 6.690% 117 9/1/08
9821133 State College PA 16803 3,274,954.53 21,274.02 6.750% 118 10/1/08
9821142 Wisconsin Rapids WI 54494 1,231,615.67 9,047.32 8.000% 118 10/1/08
9821143 State College PA 16803 5,890,924.32 38,267.29 6.750% 118 10/1/08
9821144 New York NY 10010 7,668,533.85 50,452.13 6.875% 118 10/1/08
9821145 New York NY 10028 25,363,076.56 166,866.49 6.875% 118 10/1/08
9821146 Baltimore MD 21234 11,907,000.00 69,414.50 6.770% 130 10/1/09
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Control
Number Property Name Address
===============================================================================================================================
<S> <C> <C>
9821149 Greenlawn Apartments 11211 Greenlawn Avenue
9821150 New Meadowbrook Village 903-1005 East Front Street
9821151 Ridgewood Apartments 404 Jones Ferry Road
9821152 Elms Apartment House 1078 New Britain Ave
9821154 Westgrove Apartments 1815-2137 Kensington Drive
9821155 Castilian Lake Park Apartments 11444 137th St. North
9821156 29 Cornelia Street 29 Cornelia Ave
9822000 Gaston Manor 1717 Union Road
9822001 Gastonia Village 850 Majestic Court
9822003 Hickory Manor 2530 16th Street
9822004 Haws Memorial Nursing Home 1004 Holiday Lane
9822005 Ashwood Place 102 Leonard Wood Drive
9822007 Empire Medical Building 200 Hospital Drive
9822012 AmeriHost Inn / Athens 20 East Home St
9822014 Westlake Village Inn 31943 Agoura Road
9822015 Round Grove Crossing Shopping Center / Park Lane Village 297 W. FM 3040 / 502 S. Old Orchard Lane
9822016 Cabin John Mall and Shopping Center 11325 Seven Locks Road
9822017 Tower Plaza 3401 - 3431 Cox Road
9822018 Chapel Trail Commerce Center 911 NW 209th Avenue
9822026 Sack And Save Grocery 915 S.R. 19 North
9822027 Valencia Shopping Center 24125 - 24175 Magic Mountain Parkway
9822029 Layton Crossing Shopping Center 1030, 1052, 1074 and 1160 West Hill Field Road
9822030 Inland Empire Center 16721 Valley Boulevard
9822031 Wilson Square Shopping Center 6855 Wilson Boulevard
9822032 Gateway Shopping Center 855 Interstate10 South
9822033 Prince George's Metro Center 6525 Belcrest Road
9822034 Fairfield Inn by Marriott-East 7879 Eagle Crest Boulevard
9822035 The Money Store 2840 Morris Avenue
9822036 Best Buy store # 545 2201 Farrand Drive
9822037 McAllen Embassy Suites 1800 S. 2nd Street
9822038 Holiday Inn Express 234 Hendersonville Road
9822039 Redwood Heights 4050 12 St. S.E.
9822041 The Crossings at Akers Mill 3051 Akers Mill Road
9822042 Meadows Mall 12002 Southwest Freeway
9822043 Woodmont Corner 7649 Old Georgetown Rd.
9822044 2995 Baseline Office Building 2995 Baseline Rd.
9822045 Marina Shores Shoppes North Great Neck Road
9822046 925 Bryant Street 925 Bryant Street
9822047 Comcast Data Center 1303 Wrights Lane
9822048 Abercorn Street Building 7700 Abercorn Street
9822049 Holiday Inn - Bethlehem 3566 Bath Pike
9822050 Bethlehem Hampton Inn & Suite Routes 22 and 512
9822051 Gwinnett Place Shoppes 3500 Gwinnett Place Drive
9822053 La Cresta Shopping Center/Self Storage 3900 Foothill Boulevard
9822056 Grandview Plaza 2740-2760 N. Grandview
9822058 Oak Knoll Nursing & Rehab Center 37 North Clark
9822059 EZ8 Motel (Good Nite Inn) 5201 South Industrial Road
9822060 48th Executive Court 1107 48th Avenue North
9822061 Gateway Plaza 11465 Carmel Mountain Rd.
9822062 9201 Fourth Avenue 9201 4th Avenue
9822063 Fresh Warehousing 4300 Church Road
9822064 7 Perimeter Road 7 Perimeter Road
9822065 Centre at Woodstock 12195 Hwy 92/East Alabama Rd.
<CAPTION>
Remaining
Term to
Control Cut-Off Date Monthly Mortgage Maturity Maturity
Number City State Zip Code Balance ($) Debt Service Rate (%) (Mos.) Date
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
9821149 Culver City CA 90230 2,693,674.10 17,737.08 6.875% 117 9/1/08
9821150 Plainfield NJ 07061 2,661,423.69 18,420.31 7.375% 177 9/1/13
9821151 Carrboro NC 27510 4,359,597.88 29,804.28 7.250% 357 9/1/28
9821152 West Hartford CT 06110 2,045,330.05 13,638.70 7.000% 117 9/1/08
9821154 Waukesha WI 53188 6,335,122.42 41,714.98 6.875% 117 9/1/08
9821155 Largo FL 33774 3,686,445.93 24,318.73 6.880% 115 7/1/08
9821156 New York NY 10014 1,441,678.45 9,574.83 6.960% 117 9/1/08
9822000 Gastonia NC 28054 2,154,409.69 14,586.01 7.125% 113 5/1/08
9822001 Gastonia NC 28054 1,169,252.40 7,916.19 7.125% 113 5/1/08
9822003 Hickory NC 28601 1,835,975.00 12,430.11 7.125% 113 5/1/08
9822004 Fulton KY 42041 1,787,514.95 13,595.92 7.750% 113 5/1/08
9822005 Frankfort KY 40601 4,958,864.23 34,861.96 6.850% 113 5/1/08
9822007 Glen Burnie MD 21061 4,978,269.17 33,433.19 7.050% 114 6/1/08
9822012 Athens OH 45701 2,721,473.22 22,153.81 7.500% 234 6/1/18
9822014 Westlake Village CA 91361 9,936,122.74 73,493.06 7.438% 114 6/1/08
9822015 Lewisville TX 75067 3,200,743.38 23,477.00 7.330% 113 5/1/08
9822016 Potomac MD 20854 24,663,748.11 189,051.99 6.680% 233 5/1/18
9822017 Richmond VA 23233 1,989,840.85 13,841.07 7.125% 113 5/1/08
9822018 Pembroke Pines FL 33029 2,897,192.96 20,880.74 7.130% 113 5/1/08
9822026 Meridian MS 39307 2,296,314.31 17,606.33 7.250% 113 5/1/08
9822027 Santa Clarita CA 91355 4,468,112.99 32,889.58 7.375% 114 6/1/08
9822029 Layton UT 84041 3,808,490.71 27,033.65 7.610% 113 5/1/08
9822030 Fontana CA 92335 21,416,906.11 143,495.60 7.020% 113 5/1/08
9822031 Jacksonville FL 32210 2,483,843.20 18,271.99 7.375% 114 6/1/08
9822032 Beaumont TX 77701 8,800,359.91 70,600.01 8.610% 102 6/1/07
9822033 Hyattsville MD 20782 24,376,353.06 162,999.11 7.000% 173 5/1/13
9822034 Evansville IN 47715 4,008,700.28 32,936.78 7.625% 174 6/1/13
9822035 Union NJ 07083 6,821,885.94 52,876.14 6.850% 234 6/1/18
9822036 Wilmington DE 19808 3,412,777.00 27,184.42 7.210% 114 6/1/08
9822037 McAllen TX 78503 14,702,468.20 107,166.19 7.270% 114 6/1/08
9822038 Asheville NC 28803 2,672,936.46 22,165.61 7.750% 234 6/1/18
9822039 Salem OR 97302 5,519,358.00 39,669.91 7.125% 115 7/1/08
9822041 Atlanta GA 30339 1,792,081.86 11,975.44 7.000% 114 6/1/08
9822042 Meadows TX 77477 6,771,994.26 46,480.27 7.270% 114 6/1/08
9822043 Bethesda MD 20814 5,979,312.62 40,402.86 7.120% 114 6/1/08
9822044 Boulder CO 80303 1,889,509.95 13,580.69 7.125% 115 7/1/08
9822045 Virginia Beach VA 23451 1,989,259.26 14,481.92 7.270% 115 7/1/08
9822046 San Francisco CA 94103 969,868.71 7,126.08 7.375% 115 7/1/08
9822047 East Goshen PA 19380 2,380,286.53 19,702.77 7.750% 235 7/1/18
9822048 Savannah GA 31406 1,491,619.72 10,661.57 7.063% 115 7/1/08
9822049 Bethlehem PA 18107 10,046,587.94 73,655.46 7.350% 115 7/1/08
9822050 Bethlehem PA 18107 7,062,452.92 51,777.60 7.350% 115 7/1/08
9822051 Atlanta GA 30136 3,579,887.35 25,587.76 7.063% 115 7/1/08
9822053 La Crescenta CA 91214 4,679,521.22 34,062.82 7.280% 116 8/1/08
9822056 Odessa TX 79761 1,843,423.94 12,308.10 7.000% 115 7/1/08
9822058 Ferguson MO 63135 1,149,491.71 8,819.05 7.875% 115 7/1/08
9822059 Las Vegas NV 89118 2,750,797.31 20,433.11 7.500% 115 7/1/08
9822060 Myrtle Beach SC 29577 2,884,366.10 20,961.40 7.250% 115 7/1/08
9822061 San Diego CA 92128 5,679,584.90 37,807.47 6.970% 115 7/1/08
9822062 Brooklyn NY 11209 10,838,381.07 77,038.93 7.000% 115 7/1/08
9822063 Centreville IL 62207 4,981,578.20 40,143.74 7.390% 115 7/1/08
9822064 Manchester NH 03103 3,139,496.51 21,488.55 7.250% 115 7/1/08
9822065 Woodstock GA 30188 6,935,371.16 53,893.41 6.910% 175 7/1/13
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Control
Number Property Name Address
===============================================================================================================================
<S> <C> <C>
9822066 Lake Placid Inn & Conference Center 2165 U.S. 27
9822067 Fairfield Inn - Chester 12400 Redwater Creek Rd.
9822068 The Millenium Building 230 Half Mile Road
9822069 Eckerd Drugstore 2406 Little Rock Road
9822070 Comfort Inn Max Meadows Route 2, Box 426B
9822072 1025 W. St. Georges Avenue 1025 W. St. Georges Avenue
9822074 Southeastern Eye Center Roll Up Various
9822075 Valley East Plaza 1520-1550 West Southern Ave.
9822078 Warner Self Storage 6415 DeSota Ave.
9822079 F & W Office Park - Bldg. F 3800 Electric Rd
9822080 Hampton Inn Miami Airport West 3620 NW 79th Ave
9822082 Ramada Limited Biloxi 1768 Beach Boulevard
9822083 Hampton Inn-Airport 4234 South 48th St.
9822085 Briarwood Healthcare Center 1440 Vine Street & 1427 Gaylord Street
9822087 New Brighton Manor 200 Lafayette Ave.
9822089 Best Western Inn at Chimney Hill 901 University Drive
9822090 8578 Santa Monica Blvd 8578 Santa Monica Blvd.
9822091 Glenside Kmart 5432 Glenside Drive
9822092 Piggly Wiggly 535 East Murdock Avenue
9822120 Best Western Mayfair Hotel 1256 W. Seventh Street
9822122 Gateway Plaza-Las Vegas 1306 and 1318 Craig Road
9822123 Bennington Square Shopping Center 3 Kocher Drive
9822124 Boykin Center NW 36th st and NW 79th ST
9822126 Colonial Health Care and Southdale Health Care Centers 3120 N. 21st St. & 3712 Tower Ave.
9822127 One Capital City Plaza 3350 Peachtree Rd.
9822128 Leesburg Plaza Shopping Center 26 Plaza Street
9822131 Best Western Staunton Inn 260 Rowe Road
9822132 Best Western Inn @ Valley View 5050 Valley View Boulevard
9822133 Comfort Inn - Lexington U.S. 11 South, P.O. Box 905
9822134 Comfort Inn Troutville 2654 Lee Highway
9822140 Days Inn Oceanside 435 N. Atlantic Blvd.
9822141 Holiday Inn Express US 11& 64
9822143 Best Western Inn @ Hunt Ridge NWC VA Route 39/Willow Springs Road Intersection
9822145 Hazel Mini Storage 6108 Hazel Avenue
9822146 Panama City Square Shopping Center 513-669 West 23rd Street
9822147 Stratford Square Shopping Center 1661 Eastern Boulevard
9822149 Dyersburg Mall 2700 Lake Road
9822150 Madison Square Shopping Center 2501-2589 Madison Avenue
9822152 Natchez Mall 350 John R. Junkin Drive
9822156 Town West Plaza 1400 Westmore Avenue
9822159 Celluar One Shopping Center 1170 West Patrick Street
9822167 Chesapeake Station Maryland Route 261
9822174 Michigan Marketplace 1183 Manistee Highway
9822176 Shoppes at Home Depot 1135-41 Bell Road
9822183 Rainbow Express Village Center 130-240 S. Rainbow Blvd.
9822185 Sun Center 101 SE 2nd Place
9822187 Days Inn Central 315 West 3300 South
9822188 Holiday Inn Rocky Mount 651 Winstead Avenue
9822189 4600 N. Harlem 4600 N. Harlem
9822191 Grass Valley Shopping Center 111-151 McKnight Way
9822192 Grandview Plaza Office Building 10850 Traverse Hwy
9823000 CVS Waltham Main 826 Main St.
9823009 Rite Aid Dover 1580 S. Dupont Highway
<CAPTION>
Remaining
Term to
Control Cut-Off Date Monthly Mortgage Maturity Maturity
Number City State Zip Code Balance ($) Debt Service Rate (%) (Mos.) Date
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
9822066 Lake Placid FL 33852 1,688,320.09 13,695.08 7.500% 236 8/1/18
9822067 Chester VA 23831 4,244,865.43 33,950.65 7.313% 115 7/1/08
9822068 Middletown NJ 07701 5,972,116.81 42,139.20 6.930% 116 8/1/08
9822069 Charlotte NC 28214 1,695,045.52 11,310.14 7.000% 116 8/1/08
9822070 Max Meadows VA 24360 1,792,474.01 13,301.84 7.500% 176 8/1/13
9822072 Linden NJ 07036 1,991,031.81 14,295.46 7.125% 116 8/1/08
9822074 Various NC Various 5,037,802.85 46,197.39 7.125% 176 8/1/13
9822075 Mesa AZ 85202 10,269,064.74 67,663.67 6.875% 116 8/1/08
9822078 Woodland Hills CA 91367 2,339,472.09 16,804.70 7.130% 116 8/1/08
9822079 Roanoke VA 24018 2,370,730.75 21,739.95 7.125% 176 8/1/13
9822080 Miami FL 33166 6,272,715.49 45,790.82 7.313% 176 8/1/13
9822082 Biloxi MS 39531 2,091,219.69 15,518.81 7.500% 117 9/1/08
9822083 Phoenix AZ 85040 7,405,663.28 54,359.17 7.375% 116 8/1/08
9822085 Denver CO 80206 5,879,355.63 41,888.35 7.050% 117 9/1/08
9822087 Staten Island NY 10301 19,896,942.28 162,712.17 7.630% 237 9/1/18
9822089 College Station TX 77840 2,466,944.11 18,225.68 7.460% 117 9/1/08
9822090 West Hollywood CA 90069 7,976,901.20 54,166.08 6.900% 117 9/1/08
9822091 Richmond VA 23228 2,475,993.98 22,331.17 6.900% 177 9/1/13
9822092 Oshkosh WI 54901 1,619,264.28 11,485.16 7.000% 117 9/1/08
9822120 Los Angeles CA 90017 4,833,973.21 35,447.66 7.375% 117 9/1/08
9822122 N Las Vegas NV 89030 2,891,650.13 19,391.25 7.050% 116 8/1/08
9822123 Bennington VT 05201 3,985,881.26 28,271.17 7.000% 117 9/1/08
9822124 Miami FL 33166 3,982,269.42 28,751.41 7.188% 176 8/1/13
9822126 Superior WI 54880 1,343,038.97 10,978.93 7.625% 117 9/1/08
9822127 Atlanta GA 30326 46,000,000.00 267,375.00 6.750% 117 9/1/08
9822128 Leesburg VA 20176 9,900,000.00 54,496.00 6.510% 118 10/1/08
9822131 Staunton VA 24401 3,178,740.29 22,546.26 7.000% 117 9/1/08
9822132 Roanoke VA 24012 3,625,159.01 25,712.63 7.000% 117 9/1/08
9822133 Lexington VA 24450 3,736,763.68 26,504.22 7.000% 117 9/1/08
9822134 Troutville VA 24175 2,428,398.15 17,224.21 7.000% 117 9/1/08
9822140 Ft. Lauderdale FL 33304 3,352,160.05 23,480.53 6.875% 118 10/1/08
9822141 Lexington VA 24450 2,540,999.31 18,022.87 7.000% 117 9/1/08
9822143 Lexington VA 24450 5,081,998.61 36,045.74 7.000% 117 9/1/08
9822145 Orangevale CA 95662 1,464,847.43 10,427.19 7.040% 117 9/1/08
9822146 Panama City FL 32405 13,339,448.97 86,652.71 6.750% 82 10/1/05
9822147 Montgomery AL 36117 5,918,881.24 38,448.90 6.750% 82 10/1/05
9822149 Dyersburg TN 38024 8,646,678.74 56,168.60 6.750% 82 10/1/05
9822150 Montgomery AL 36107 1,837,169.63 11,934.20 6.750% 82 10/1/05
9822152 Natchez MS 39120 8,906,278.81 57,854.95 6.750% 82 10/1/05
9822156 Terrell TX 75160 2,594,205.75 18,584.10 7.125% 118 10/1/08
9822159 Frederick MD 21703 3,092,332.71 20,624.38 7.000% 177 9/1/13
9822167 Chesapeake Beach MD 20732 2,918,031.25 19,068.81 6.800% 117 9/1/08
9822174 Manistee MI 49660 1,797,392.55 11,975.44 7.000% 82 10/1/05
9822176 Antioch TN 37013 1,992,965.19 14,161.11 7.020% 117 9/1/08
9822183 Las Vegas NV 89128 4,019,055.46 26,562.52 6.920% 118 10/1/08
9822185 Gainesville FL 32601 2,986,855.31 21,684.21 7.250% 116 8/1/08
9822187 Salt Lake City UT 84115 3,985,248.13 31,271.17 8.150% 176 8/1/13
9822188 Rocky Mount NC 27804 7,467,138.31 54,210.51 7.250% 116 8/1/08
9822189 Harwood Heights IL 60062 2,506,314.57 17,976.55 7.125% 117 9/1/08
9822191 Grass Valley CA 95945 8,985,111.54 56,531.46 6.440% 118 10/1/08
9822192 Traverse City MI 49684 2,744,287.39 20,322.26 7.500% 118 10/1/08
9823000 Waltham MA 02451 3,668,233.60 28,198.57 7.250% 241 1/1/19
9823009 Dover DE 19901 2,634,754.87 18,320.35 6.942% 258 6/1/20
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Control
Number Property Name Address
===============================================================================================================================
<S> <C> <C>
9823010 Rite Aid Littleton 118 136 Meadow Street
9823012 Rite Aid Louisville - Taylor & Bluegrass 4901 Taylor
9823026 Rite Aid - Citrus Heights 6422 Tupelo Drive
9823028 Rite Aid - Portland 1952 North Lombard Street
9823030 Walgreens Ft Worth 6555 Forest Hill Drive
9823031 Walgreen Jacksonville St Augustine 4297 Oldfield Crossing Drive
9823032 Walgreen Melbourne Wickham Wickham Road & Post Road
9823033 CVS York Richland 165 South Richland Avenue
9823035 Edwards Supermarket - Teaneck 665 American Legion Drive
9823042 Motel 6 1118 Austin AP 5330 N. Interregional Highway
9823054 Motel 6 1261 Houston - Spring 19606 Cypresswood Court
9823069 Motel 6 1273 Portland One Riverside Street
9823072 Motel 6 352 Rapid City 620 E. Latrobe Street
9823074 Motel 6 134 San Antonio (N) 9503 Interstate Highway 35 No.
9823076 Motel 6 284 South Deerfield Route 5 & 10
9823082 Rite Aid Norfolk 6124 Chesapeake Boulevard
9823094 Eckerd Pompano Sample 850 East Sample Road
9823097 IHOP Douglasville Douglas Blvd Douglas Blvd & Georgia St Hgwy 5
9823098 Bunzl Hicksville Duffy 300 Duffy Avenue
9823099 CVS Columbia Sparkleberry Sparkleberry Lane & Clemson Road
9823101 CVS Rochester Henrietta 2580 East Henrietta Road
9823102 Lowes Hattiesburg Weathersby US Highway 98 and Weathersby Rd
9823109 Rite Aid - Dixie Highway, Lousiville 4721 Dixie Highway
9823113 Eckerd - Charlotte - Harris Blvd 7115 East Harris Blvd
9823114 Rite Aid Battle Creek Raymond & E. Michigan
9823115 Rite Aid Saginaw Genesee 525 West Genesee Avenue
9823118 Sears Union Center Island 2191 Route 22 Center Island
9823121 Walgreen Hialeah 4th Ave SEC Southeast 4th Ave
<CAPTION>
Remaining
Term to
Control Cut-Off Date Monthly Mortgage Maturity Maturity
Number City State Zip Code Balance ($) Debt Service Rate (%) (Mos.) Date
===================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
9823010 Littleton NH 03263 3,171,464.19 22,052.27 6.942% 258 6/1/20
9823012 Louisville KY 40217 2,345,714.93 16,128.00 6.826% 258 6/1/20
9823026 Citrus Heights CA 95621 5,132,894.66 35,690.76 6.942% 258 6/1/20
9823028 Portland OR 97201 2,270,384.47 15,606.22 6.942% 258 6/1/20
9823030 Forest Hill TX 76140 2,367,466.35 18,647.23 7.000% 232 4/1/18
9823031 Jacksonville FL 32223 2,516,933.98 20,134.47 7.125% 229 1/1/18
9823032 Melbourne FL 32935 2,720,928.37 21,811.32 7.125% 228 12/1/17
9823033 York PA 17404 1,629,795.92 12,714.10 6.900% 233 5/1/18
9823035 Teaneck NJ 07666 8,516,651.39 55,502.04 7.021% 233 5/1/18
9823042 Austin TX 78751 5,866,628.32 35,370.88 7.235% 210 6/1/16
9823054 Spring TX 77388 3,429,285.15 20,675.74 7.235% 210 6/1/16
9823069 Portland ME 04102 4,610,168.47 27,795.48 7.235% 210 6/1/16
9823072 Rapid City SD 57701 4,043,344.48 24,378.00 7.235% 210 6/1/16
9823074 San Antonio TX 78501 2,616,837.43 15,777.34 7.235% 210 6/1/16
9823076 South Deerfield MA 01373 3,297,026.22 19,878.32 7.235% 210 6/1/16
9823082 Norfolk VA 23513 2,741,955.57 18,611.00 6.826% 259 7/1/20
9823094 Pompano Beach FL 33064 2,422,574.84 17,212.62 6.938% 230 2/1/18
9823097 Douglasville GA 30135 1,255,603.26 9,014.25 7.750% 292 4/1/23
9823098 Hicksville NY 11801 6,497,306.79 52,535.22 7.000% 174 6/1/13
9823099 Columbia SC 29223 1,788,584.14 13,457.97 7.170% 229 1/1/18
9823101 Henrietta NY 14623 1,604,900.79 11,518.05 7.000% 229 1/1/18
9823102 Hattiesburg MS 39402 10,724,113.96 92,462.14 8.125% 228 12/1/17
9823109 Louisville KY 40210 2,566,522.39 17,641.82 6.942% 258 6/1/20
9823113 Charlotte NC 28227 2,333,036.86 17,381.69 6.700% 234 6/1/18
9823114 Battle Creek MI 49107 1,962,119.87 15,513.52 7.130% 235 7/1/18
9823115 Saginaw MI 48602 2,649,266.52 21,202.43 7.290% 235 7/1/18
9823118 Union NJ 07081 1,160,374.04 9,585.71 7.000% 177 9/1/13
9823121 Hialeah FL 33010 2,407,803.07 17,046.59 6.875% 237 9/1/18
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Remaining Master
Amortization Servicing Interest Interest
Control Term Fee Rate Accrual Accrual
Number (Mos.) Seller (%) Basis During IO Title Vesting Property Type
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
10000 359 FUNB 0.040% Actual/360 NA Multifamily - Conventional
10003 359 FUNB 0.040% Actual/360 NA Multifamily - Conventional
10004 359 FUNB 0.040% Actual/360 NA Multifamily - Conventional
10019 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
20007 358 FUNB 0.040% Actual/360 NA Retail - Anchored
20022 357 FUNB 0.040% Actual/360 NA Retail - Unanchored
20025 359 FUNB 0.040% Actual/360 NA Retail - Unanchored
20037 178 FUNB 0.040% Actual/360 NA Retail - Unanchored
20042 299 FUNB 0.040% Actual/360 NA Retail - Anchored
30013 286 FUNB 0.040% 30/360 NA CTL - Retail
30092 283 FUNB 0.040% 30/360 NA CTL - Retail
9821000 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821001 353 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821002 353 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821003 353 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821004 353 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821005 353 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821006 360 FUNB 0.040% 30/360 30/360 Multifamily - Conventional
9821007 353 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821009 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821010 353 FUNB 0.040% 30/360 NA Multifamily - Sec. 42
9821011 323 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821012 352 FUNB 0.040% 30/360 NA Multifamily - Sec. 42
9821013 293 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821014 293 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821015 293 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821016 352 FUNB 0.040% 30/360 NA Multifamily - Sec. 42
9821018 293 FUNB 0.040% 30/360 NA Multifamily - Sec. 42
9821020 294 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821021 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821022 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821023 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821024 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821025 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821026 355 FUNB 0.040% Actual/360 NA Leasehold Multifamily - Conventional
9821027 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821028 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821029 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821030 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821031 353 FUNB 0.040% Actual/360 NA Multifamily - Sec. 42
9821034 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821037 353 FUNB 0.090% Actual/360 NA Multifamily - Conventional
9821038 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821039 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821040 354 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821041 355 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821042 354 FUNB 0.040% 30/360 NA Multifamily - Sec. 42
9821044 354 FUNB 0.040% 30/360 NA Multifamily - Sec. 42
9821045 355 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821046 355 FUNB 0.040% Actual/360 NA Multifamily - Sec. 42
9821048 360 FUNB 0.040% Actual/360 30/360 Multifamily - Conventional
9821049 355 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821050 355 FUNB 0.040% Actual/360 NA Multifamily - Conventional
<CAPTION>
Lease Cut-Off Cross
Control Enhance- Date LTV Collateralized
Number Largest Tenant Name ment RVI DSCR (x) (%) Groups
===============================================================================================================
<S> <C> <C> <C> <C> <C> <C>
10000 1.43 75.0% Collegiate
10003 1.41 76.6% Collegiate
10004 1.46 73.7% Collegiate
10019 1.27 74.9%
20007 CVS / Revco Drugstore 1.47 73.7%
20022 Doris Meat Market 1.31 74.8%
20025 Ladies Health and Fitness 1.29 75.1%
20037 Georgia Carpet Outlet 1.25 67.5%
20042 Genaurdi's Family Markets 1.39 67.5%
30013 Lowe's Home Centers, Inc TRUE TRUE 1.00 98.7%
30092 Walgreen Company TRUE TRUE 1.12 91.1%
9821000 1.34 77.4%
9821001 1.35 79.6%
9821002 1.53 79.6%
9821003 1.25 79.6%
9821004 1.33 79.6%
9821005 1.22 74.6%
9821006 1.25 72.5%
9821007 1.31 72.4%
9821009 1.25 79.7%
9821010 1.22 79.0%
9821011 1.49 71.8%
9821012 1.16 84.6%
9821013 1.46 76.9%
9821014 1.31 79.4%
9821015 1.30 76.9%
9821016 1.21 78.0%
9821018 1.20 81.1%
9821020 1.29 74.5%
9821021 1.41 79.7%
9821022 1.25 76.8%
9821023 1.85 79.7%
9821024 1.28 79.7%
9821025 1.36 77.6%
9821026 1.28 68.1%
9821027 1.34 79.2%
9821028 1.36 73.6%
9821029 1.58 79.7%
9821030 1.30 73.5%
9821031 1.44 83.4%
9821034 1.25 79.5%
9821037 1.48 73.3%
9821038 1.33 79.7%
9821039 1.41 79.7%
9821040 1.26 79.0%
9821041 1.28 57.0%
9821042 1.17 81.0%
9821044 1.15 81.5%
9821045 1.30 75.3%
9821046 1.19 72.6%
9821048 1.21 79.9%
9821049 1.28 79.7%
9821050 1.34 79.7%
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Remaining Master
Amortization Servicing Interest Interest
Control Term Fee Rate Accrual Accrual
Number (Mos.) Seller (%) Basis During IO Title Vesting Property Type
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
9821051 355 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821052 355 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821053 355 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821054 355 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821056 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821057 356 FUNB 0.040% 30/360 NA Multifamily - Conventional
9821058 356 FUNB 0.140% Actual/360 NA Multifamily - Conventional
9821059 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821060 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821061 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821062 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821063 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821064 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821065 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821066 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821067 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821068 356 FUNB 0.040% Actual/360 NA Multifamily - Sec. 42
9821069 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821071 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821072 356 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821074 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821075 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821076 297 FUNB 0.090% Actual/360 NA Mobile Home Park
9821081 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821082 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821097 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821098 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821099 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821100 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821101 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821102 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821103 360 FUNB 0.040% 30/360 30/360 Multifamily - Conventional
9821104 360 FUNB 0.040% 30/360 30/360 Multifamily - Conventional
9821105 360 FUNB 0.040% 30/360 30/360 Multifamily - Conventional
9821107 297 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821109 359 FUNB 0.040% Actual/360 NA Multifamily - Sec. 42
9821111 298 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821112 298 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821115 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821121 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821122 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821122.1 FUNB Multifamily - Conventional
9821122.2 FUNB Multifamily - Conventional
9821124 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821125 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821126 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821130 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821133 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821142 358 FUNB 0.040% Actual/360 NA Multifamily - Sec. 42
9821143 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821144 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821145 358 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821146 360 FUNB 0.040% Actual/360 Actual/360 Multifamily - Conventional
<CAPTION>
Lease Cut-Off Cross
Control Enhance- Date LTV Collateralized
Number Largest Tenant Name ment RVI DSCR (x) (%) Groups
===============================================================================================================
<S> <C> <C> <C> <C> <C> <C>
9821051 1.30 79.7%
9821052 1.55 79.7%
9821053 1.27 79.7%
9821054 1.38 79.7%
9821056 1.29 78.4%
9821057 1.43 69.7%
9821058 1.54 66.0%
9821059 1.28 69.5%
9821060 1.36 65.0%
9821061 1.40 68.3%
9821062 1.26 79.8%
9821063 1.53 79.8%
9821064 1.24 73.9%
9821065 1.23 79.8%
9821066 1.25 69.6%
9821067 1.22 79.8%
9821068 1.15 76.7%
9821069 1.29 79.8%
9821071 1.31 79.8%
9821072 1.45 67.3%
9821074 1.21 77.5% Murphy III
9821075 1.53 62.5% Murphy III
9821076 1.26 71.4%
9821081 1.21 78.5%
9821082 1.30 79.8%
9821097 1.26 74.8%
9821098 1.33 68.3%
9821099 1.37 73.2%
9821100 1.30 79.0%
9821101 1.24 79.9%
9821102 1.27 79.8%
9821103 1.21 77.4%
9821104 1.22 72.5%
9821105 1.20 78.7%
9821107 1.60 65.0%
9821109 1.53 62.6%
9821111 1.64 66.5%
9821112 1.32 52.5%
9821115 1.37 71.4%
9821121 1.43 74.9%
9821122 1.27 79.1%
9821122.1
9821122.2
9821124 1.26 74.9%
9821125 1.24 73.2%
9821126 1.23 79.9%
9821130 1.37 70.7%
9821133 1.39 79.9%
9821142 1.15 84.9%
9821143 1.37 79.9%
9821144 1.35 79.9%
9821145 1.20 79.3%
9821146 1.35 81.0%
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Remaining Master
Amortization Servicing Interest Interest
Control Term Fee Rate Accrual Accrual
Number (Mos.) Seller (%) Basis During IO Title Vesting Property Type
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
9821149 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821150 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821151 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821152 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821154 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821155 355 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9821156 357 FUNB 0.040% Actual/360 NA Multifamily - Conventional
9822000 353 FUNB 0.040% Actual/360 NA Healthcare - Assisted Living
9822001 353 FUNB 0.040% Actual/360 NA Healthcare - Assisted Living
9822003 353 FUNB 0.040% Actual/360 NA Healthcare - Assisted Living
9822004 293 FUNB 0.040% Actual/360 NA Healthcare - Skilled Nursing
9822005 293 FUNB 0.040% Actual/360 NA Healthcare - Congregate Care
9822007 354 FUNB 0.040% Actual/360 NA Office - Medical
9822012 234 FUNB 0.040% Actual/360 NA Leasehold Hospitality - Limited Service
9822014 294 FUNB 0.040% Actual/360 NA Hospitality - Full Service
9822015 293 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822016 233 FUNB 0.040% Actual/360 NA Retail - Anchored
9822017 324 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822018 293 FUNB 0.040% Actual/360 NA Industrial - Warehouse/Distribution
9822026 257 FUNB 0.040% Actual/360 NA Retail - Anchored
9822027 294 FUNB 0.040% 30/360 NA Retail - Unanchored
9822029 353 FUNB 0.040% Actual/360 NA Retail - Anchored
9822030 353 FUNB 0.040% Actual/360 NA Retail - Anchored
9822031 294 FUNB 0.040% Actual/360 NA Retail - Anchored
9822032 312 FUNB 0.040% Actual/360 NA Retail - Anchored
9822033 353 FUNB 0.040% Actual/360 NA Leasehold & Fee Office
9822034 234 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822035 234 FUNB 0.040% Actual/360 NA Leasehold Office
9822036 234 FUNB 0.040% Actual/360 NA Retail - Anchored
9822037 294 FUNB 0.040% Actual/360 NA Hospitality - Full Service
9822038 234 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822039 295 FUNB 0.040% Actual/360 NA Healthcare - Assisted Living
9822041 354 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822042 354 FUNB 0.040% Actual/360 NA Retail - Anchored
9822043 355 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822044 295 FUNB 0.040% Actual/360 NA Office
9822045 295 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822046 295 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822047 235 FUNB 0.040% Actual/360 NA Office
9822048 295 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822049 295 FUNB 0.040% Actual/360 NA Hospitality - Full Service
9822050 295 FUNB 0.040% Actual/360 NA Hospitality - Full Service
9822051 295 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822053 296 FUNB 0.040% Actual/360 NA Mixed Use - Self Storage/Retail
9822056 355 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822058 295 FUNB 0.040% Actual/360 NA Healthcare - Skilled Nursing
9822059 295 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822060 295 FUNB 0.040% Actual/360 NA Office
9822061 355 FUNB 0.040% Actual/360 NA Retail - Anchored
9822062 295 FUNB 0.040% Actual/360 NA Office
9822063 235 FUNB 0.040% Actual/360 NA Industrial - Warehouse/Distribution
9822064 355 FUNB 0.040% Actual/360 NA Leasehold Industrial - Warehouse/Distribution
9822065 235 FUNB 0.040% Actual/360 NA Retail - Anchored
<CAPTION>
Lease Cut-Off Cross
Control Enhance- Date LTV Collateralized
Number Largest Tenant Name ment RVI DSCR (x) (%) Groups
===============================================================================================================
<S> <C> <C> <C> <C> <C> <C>
9821149 1.49 74.8%
9821150 1.28 79.8%
9821151 1.26 75.2%
9821152 1.24 75.8%
9821154 1.33 76.3%
9821155 1.30 76.8%
9821156 1.25 70.3%
9822000 1.42 71.8%
9822001 1.66 57.2%
9822003 1.30 74.5%
9822004 2.13 54.2%
9822005 1.44 77.5%
9822007 Chesapeake Orthopedic and Sports Medicine 1.79 56.9%
9822012 1.48 59.2%
9822014 1.64 44.7%
9822015 Fitness World 1.31 74.4%
9822016 Giant Foods 1.37 60.9%
9822017 El Paso Mexican Restaurant 1.32 73.0%
9822018 American Aviation 1.43 77.3%
9822026 Jitney-Jungle Stores of America 1.26 74.1%
9822027 Blockbuster Music 1.27 74.5%
9822029 Deseret Industries 1.30 74.7%
9822030 Vons - Store #55 (Safeway Credit) 1.26 74.6%
9822031 Food Lion # 522 1.30 73.1%
9822032 White House 1.31 67.7%
9822033 HHS 11B-90186 1.30 71.7%
9822034 1.46 74.2%
9822035 The Money Store 1.30 73.6%
9822036 Best Buy 1.45 50.2%
9822037 1.60 65.3%
9822038 1.73 74.3%
9822039 1.46 72.6%
9822041 Jos A. Bank 1.51 79.7%
9822042 Garden Ridge, Inc. 1.25 73.6%
9822043 Maryland Youth Ballet 1.32 64.3%
9822044 Geomega 1.29 72.7%
9822045 West Marine 1.35 75.1%
9822046 Georgiou Retail Stores 1.26 73.8%
9822047 Comcast Cable Communications 1.20 74.4%
9822048 Perrie-Swan Sales (Audio Warehouse) 1.32 74.6% Segall
9822049 1.46 71.8% Gateway
9822050 1.40 70.6% Gateway
9822051 Gallery Fine Furniture 1.36 74.6% Segall
9822053 The Fish Cove 1.31 68.8%
9822056 Kentuckiana Restaurants dba Gatti's 1.30 78.4%
9822058 2.02 69.7%
9822059 1.49 69.6%
9822060 GSA 1.33 68.7%
9822061 Good Guys 1.31 63.8%
9822062 Metropolitan Life Insurance Co. 1.30 67.3%
9822063 M.J. Resurrection, Inc. 1.37 74.4%
9822064 U.S. Postal Service 1.47 73.9%
9822065 Publix 1.30 72.2%
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Remaining Master
Amortization Servicing Interest Interest
Control Term Fee Rate Accrual Accrual
Number (Mos.) Seller (%) Basis During IO Title Vesting Property Type
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
9822066 236 FUNB 0.040% Actual/360 NA Hospitality - Full Service
9822067 236 FUNB 0.090% Actual/360 NA Hospitality - Limited Service
9822068 296 FUNB 0.040% Actual/360 NA Office
9822069 356 FUNB 0.040% Actual/360 NA Retail - Anchored
9822070 296 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822072 296 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822074 176 FUNB 0.040% Actual/360 NA Office - Medical
9822075 356 FUNB 0.040% Actual/360 NA Retail - Anchored
9822078 296 FUNB 0.040% Actual/360 NA Self Storage
9822079 176 FUNB 0.040% Actual/360 NA Office
9822080 296 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822082 296 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822083 296 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822085 297 FUNB 0.040% Actual/360 NA Healthcare - Skilled Nursing
9822087 237 FUNB 0.040% Actual/360 NA Leasehold Healthcare - Skilled Nursing
9822089 297 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822090 327 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822091 177 FUNB 0.040% 30/360 NA Retail - Anchored
9822092 297 FUNB 0.040% Actual/360 NA Retail - Anchored
9822120 297 FUNB 0.040% Actual/360 NA Hospitality - Full Service
9822122 356 FUNB 0.040% Actual/360 NA Retail - Anchored
9822123 297 FUNB 0.040% Actual/360 NA Retail - Anchored
9822124 296 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822126 237 FUNB 0.040% Actual/360 NA Healthcare - Skilled Nursing
9822127 360 FUNB 0.040% Actual/360 Actual/360 Office
9822128 336 FUNB 0.040% Actual/360 $54,496.00 per Retail-Anchored
month during IO
(avg of Act/360
over IO period
9822131 297 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822132 297 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822133 297 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822134 297 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822140 298 FUNB 0.040% Actual/360 NA Hospitality - Full Service
9822141 297 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822143 297 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822145 297 FUNB 0.040% Actual/360 NA Self Storage
9822146 358 FUNB 0.040% Actual/360 NA Retail - Anchored
9822147 358 FUNB 0.040% Actual/360 NA Retail - Anchored
9822149 358 FUNB 0.040% Actual/360 NA Retail - Anchored
9822150 358 FUNB 0.040% Actual/360 NA Retail - Anchored
9822152 358 FUNB 0.040% Actual/360 NA Retail - Anchored
9822156 298 FUNB 0.040% Actual/360 NA Retail - Anchored
9822159 357 FUNB 0.040% 30/360 NA Retail - Unanchored
9822167 357 FUNB 0.040% Actual/360 NA Retail - Anchored
9822174 358 FUNB 0.040% Actual/360 NA Retail - Anchored
9822176 297 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822183 358 FUNB 0.040% Actual/360 NA Retail - Anchored
9822185 296 FUNB 0.040% Actual/360 NA Mixed Use - Office/Retail
9822187 296 FUNB 0.040% Actual/360 NA Hospitality - Limited Service
9822188 296 FUNB 0.040% Actual/360 NA Hospitality - Full Service
9822189 297 FUNB 0.040% Actual/360 NA Retail - Unanchored
9822191 358 FUNB 0.040% Actual/360 NA Retail - Anchored
9822192 298 FUNB 0.040% Actual/360 NA Office
9823000 241 FUNB 0.040% 30/360 NA CTL - Retail
9823009 309 FUNB 0.040% 30/360 NA CTL - Retail
<CAPTION>
Lease Cut-Off Cross
Control Enhance- Date LTV Collateralized
Number Largest Tenant Name ment RVI DSCR (x) (%) Groups
===============================================================================================================
<S> <C> <C> <C> <C> <C> <C>
9822066 1.47 73.4%
9822067 1.54 74.5%
9822068 Millenium America 1.25 73.7%
9822069 Eckerd 1.27 78.1%
9822070 1.46 71.7%
9822072 Blockbuster 1.48 40.6%
9822074 Southeastern Eye Center Greensboro 1.30 66.2%
9822075 Bed, Bath & Beyond 1.27 82.2%
9822078 Paul Jardin of USA 1.40 57.1%
9822079 Allstate Insurance Company 1.35 47.4%
9822080 1.65 62.1%
9822082 1.47 69.7%
9822083 1.41 74.1%
9822085 1.83 53.0%
9822087 1.65 62.8%
9822089 1.41 74.8%
9822090 24 Hour Fitness 1.49 65.1%
9822091 K-Mart 2.11 37.0%
9822092 Piggly Wiggly 1.30 77.9%
9822120 1.45 52.0%
9822122 Rancher Bar & Grill 1.26 72.3%
9822123 K-Mart 1.41 66.4%
9822124 El Tropico Rest. 1.37 67.5%
9822126 1.50 61.1%
9822127 Blue Cross/Blue Shield 1.27 73.7%
9822128 K-Mart 1.65 55.0%
9822131 1.57 72.2%
9822132 1.62 74.8% DOM
9822133 1.48 74.7% DOM
9822134 1.46 74.7% DOM
9822140 1.59 69.8%
9822141 1.39 74.7% DOM
9822143 1.69 74.7% DOM
9822145 1.41 65.1%
9822146 Wal-Mart 1.38 79.9%
9822147 Waccamaw Pottery 1.39 77.9%
9822149 Peebles 1.36 79.9%
9822150 CVS (Revco) 1.43 79.9%
9822152 McRae's 1.37 74.2%
9822156 Big Lots 1.31 74.1%
9822159 Blockbuster Video 1.33 73.6%
9822167 Roland's Supermarket 1.47 74.8%
9822174 Prevo's 1.29 74.9%
9822176 Evergreen Restaurant 1.41 68.7%
9822183 American Drug Stores 1.26 71.8%
9822185 Downtown Athletic Club 1.34 74.7%
9822187 1.43 67.6%
9822188 1.40 71.8%
9822189 Petco 1.27 71.6%
9822191 K-Mart 1.34 64.9%
9822192 Distribution solutions Inter 1.34 71.3%
9823000 CVS Corporation TRUE 1.01 94.1%
9823009 Rite Aid of Delaware TRUE 1.00 91.8%
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Remaining Master
Amortization Servicing Interest Interest
Control Term Fee Rate Accrual Accrual
Number (Mos.) Seller (%) Basis During IO Title Vesting Property Type
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C>
9823010 309 FUNB 0.040% 30/360 NA CTL - Retail
9823012 309 FUNB 0.040% 30/360 NA Leasehold & Fee CTL - Retail
9823026 309 FUNB 0.040% 30/360 NA CTL - Retail
9823028 319 FUNB 0.040% 30/360 NA CTL - Retail
9823030 232 FUNB 0.040% 30/360 NA CTL - Retail
9823031 229 FUNB 0.040% 30/360 NA CTL - Retail
9823032 228 FUNB 0.040% 30/360 NA CTL - Retail
9823033 233 FUNB 0.040% 30/360 NA CTL - Retail
9823035 280 FUNB 0.040% 30/360 NA CTL - Retail
9823042 259 FUNB 0.175% 30/360 NA CTL - Hospitality
9823054 259 FUNB 0.175% 30/360 NA CTL - Hospitality
9823069 259 FUNB 0.175% 30/360 NA CTL - Hospitality
9823072 259 FUNB 0.175% 30/360 NA CTL - Hospitality
9823074 259 FUNB 0.175% 30/360 NA CTL - Hospitality
9823076 259 FUNB 0.175% 30/360 NA CTL - Hospitality
9823082 321 FUNB 0.040% 30/360 NA CTL - Retail
9823094 270 FUNB 0.040% 30/360 NA CTL - Retail
9823097 292 FUNB 0.040% 30/360 NA CTL - Retail
9823098 220 FUNB 0.040% 30/360 NA CTL - Industrial
9823099 229 FUNB 0.040% 30/360 NA CTL - Retail
9823101 229 FUNB 0.040% 30/360 NA CTL - Retail
9823102 228 FUNB 0.040% 30/360 NA CTL - Retail
9823109 319 FUNB 0.040% 30/360 NA CTL - Retail
9823113 234 FUNB 0.040% 30/360 NA CTL - Retail
9823114 235 FUNB 0.040% 30/360 NA CTL - Retail
9823115 235 FUNB 0.040% 30/360 NA CTL - Retail
9823118 177 FUNB 0.040% 30/360 NA CTL - Retail
9823121 290 FUNB 0.040% 30/360 NA CTL - Retail
<CAPTION>
Lease Cut-Off Cross
Control Enhance- Date LTV Collateralized
Number Largest Tenant Name ment RVI DSCR (x) (%) Groups
===============================================================================================================
<S> <C> <C> <C> <C> <C> <C>
9823010 Rite Aid of New Hampshire TRUE 1.00 97.6%
9823012 Rite Aid of Kentucky TRUE 1.00 97.7%
9823026 Rite Aid of California TRUE 1.00 97.4%
9823028 Rite Aid of Oregon TRUE 1.00 98.7%
9823030 Walgreen Company TRUE 1.13 82.5%
9823031 Walgreen Company TRUE 1.00 86.6%
9823032 Walgreen Company TRUE 1.00 86.4%
9823033 White Cross Stores, Inc. TRUE 1.00 97.0%
9823035 Edwards TRUE TRUE 1.13 99.6%
9823042 Motel 6 TRUE 1.00 94.5%
9823054 Motel 6 TRUE 1.00 94.5%
9823069 Motel 6 TRUE 1.00 94.5%
9823072 Motel 6 TRUE 1.00 94.5%
9823074 Motel 6 TRUE 1.00 94.5%
9823076 Motel 6 TRUE 1.00 94.5%
9823082 Rite Aid of Virginia TRUE 1.00 99.0%
9823094 Eckerd TRUE TRUE 1.09 93.2%
9823097 IHOP Properties, Inc. TRUE 1.10 95.1%
9823098 Alliance Paper and Packaging Co., Inc. TRUE TRUE 1.08 92.8%
9823099 CVS Corporation TRUE 1.02 96.2%
9823101 Henrietta CVS, Inc TRUE 1.02 99.1%
9823102 Lowe's Home Centers, Inc TRUE 1.02 87.5%
9823109 Rite Aid of Kentucky TRUE 1.00 98.7%
9823113 Eckerd TRUE 1.00 93.3%
9823114 Rite Aid of Michigan, Inc. TRUE 1.00 93.4%
9823115 Rite Aide of Michigan TRUE 1.00 92.3%
9823118 Sears, Roebuck and Co. TRUE 1.05 81.7%
9823121 Walgreen Company TRUE TRUE 1.22 79.5%
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Grace Insured Letter Interest Engin Def Environmental Init TI/LC
Control Semi Mortgage Mortgage of Reserve Maint Escrow Escrow @ Reserve Future TI/LC Reserve
Number Defeased Annual Loan Loan Credit Loan Lockbox ($) @ Close Close (Cleaned) Escrows (Cleaned)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
10000 TRUE TRUE N 1,723.75 0
10003 TRUE TRUE N 620.55 0.00
10004 TRUE TRUE N 930.83 0.00
10019 TRUE TRUE N 0.00 0.00
20007 TRUE TRUE N 0.00 0.00
20022 TRUE N 4,523.75 0.00
20025 TRUE TRUE N 0.00 0.00 14,560.00
20037 TRUE TRUE N 13,837.50 $229,448 LOC
20042 TRUE N 18,725.00 0.00
30013 TRUE FALSE Hard 0.00 0.00
30092 TRUE FALSE Hard 0.00 0.00
9821000 TRUE TRUE N 10,625.00 0.00
9821001 TRUE TRUE N 0.00 0.00
9821002 TRUE TRUE N 6,062.50 0.00
9821003 TRUE TRUE N 11,500.00 0.00
9821004 TRUE TRUE N 9,412.50 0.00
9821005 TRUE TRUE N 0.00 0.00
9821006 TRUE FALSE N 0.00 0.00
9821007 TRUE TRUE N 59,491.25 0.00
9821009 TRUE TRUE N 65,343.75 17,000.00
9821010 FALSE N 0.00 0.00
9821011 TRUE TRUE N 24,287.50 0.00
9821012 TRUE FALSE N 0.00 0.00
9821013 TRUE TRUE N 2,875.00 0.00
9821014 TRUE TRUE N 5,062.50 0.00
9821015 TRUE TRUE N 9,000.00 0.00
9821016 FALSE N 0.00 0.00
9821018 TRUE FALSE N 1,875.00 0.00
9821020 TRUE TRUE N 750.00 0.00
9821021 TRUE N 35,375.00 0.00
9821022 TRUE N 45,693.75 0.00
9821023 TRUE N 10,250.00 0.00
9821024 TRUE N 41,831.25 0.00
9821025 TRUE N 79,931.25 0.00
9821026 TRUE N 4,000.00 1,500.00
9821027 TRUE N 47,625.00 0.00
9821028 TRUE TRUE N 14,556.25 0.00
9821029 TRUE TRUE N 4,250.00 0.00
9821030 TRUE TRUE N 0.00 625.00
9821031 TRUE TRUE N 0.00 0.00
9821034 TRUE TRUE N 14,625.00 0.00
9821037 TRUE TRUE N 0.00 0.00
9821038 TRUE TRUE N 43,125.00 3,750.00
9821039 TRUE TRUE N 0.00 0.00
9821040 TRUE TRUE N 29,756.25 0.00
9821041 TRUE TRUE N 18,750.00 10,250.00
9821042 FALSE N 0.00 0.00
9821044 FALSE N 0.00 0.00
9821045 TRUE TRUE N 85,237.50 0.00
9821046 TRUE N 0.00 0.00
9821048 TRUE TRUE N 76,818.75 0.00
9821049 TRUE TRUE TRUE N 41,656.25 1,500.00
9821050 TRUE TRUE N 17,312.50 0.00
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Grace Insured Letter Interest Engin Def Environmental Init TI/LC
Control Semi Mortgage Mortgage of Reserve Maint Escrow Escrow @ Reserve Future TI/LC Reserve
Number Defeased Annual Loan Loan Credit Loan Lockbox ($) @ Close Close (Cleaned) Escrows (Cleaned)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
9821051 TRUE TRUE N 1,843.75 0.00
9821052 TRUE TRUE N 0.00 0.00
9821053 TRUE TRUE N 3,906.25 0.00
9821054 TRUE TRUE N 4,696.25 0.00
9821056 TRUE TRUE N 8,937.50 0.00
9821057 TRUE FALSE N 41,250.00 0.00
9821058 TRUE TRUE N 25,125.00 313.00
9821059 TRUE TRUE N 58,437.50 0.00
9821060 TRUE TRUE N 34,875.00 0.00
9821061 TRUE TRUE N 33,812.50 0.00
9821062 TRUE TRUE N 10,937.50 0.00
9821063 TRUE TRUE N 9,215.00 0.00
9821064 TRUE TRUE N 12,875.00 0.00
9821065 TRUE TRUE N 0.00 0.00
9821066 TRUE TRUE N 15,391.25 0.00
9821067 TRUE TRUE N 77,881.25 0.00
9821068 TRUE N 0.00 0.00
9821069 TRUE TRUE N 1,125.00 0.00
9821071 TRUE TRUE N 11,875.00 0.00
9821072 TRUE TRUE N 5,000.00 0.00
9821074 TRUE TRUE N 8,500.00 0.00
9821075 TRUE TRUE N 7,856.25 0.00
9821076 TRUE TRUE N 10,512.50 0.00
9821081 TRUE TRUE N 9,056.25 0.00
9821082 TRUE TRUE N 7,593.75 0.00
9821097 TRUE TRUE N 22,506.25 0.00
9821098 TRUE TRUE N 66,250.00 312.50
9821099 TRUE TRUE N 12,800.00 0.00
9821100 TRUE TRUE N 4,687.50 0.00
9821101 TRUE TRUE N 6,675.00 0.00
9821102 TRUE TRUE N 10,060.00 0.00
9821103 TRUE FALSE N 8,250.00 0.00
9821104 TRUE FALSE N 5,625.00 0.00
9821105 TRUE FALSE N 63,775.00 0.00
9821107 TRUE TRUE N 42,062.50 0.00
9821109 TRUE N 0.00 0.00
9821111 TRUE TRUE N 40,875.00 1,875.00
9821112 TRUE TRUE N 32,555.00 0.00
9821115 TRUE TRUE N 27,437.50 0.00
9821121 TRUE TRUE N 2,625.00 5,625.00
9821122 TRUE TRUE N 6,591.25 0.00
9821122.1 FALSE 6,591.25 0.00
9821122.2 FALSE 44,347.50 0.00
9821124 TRUE TRUE N 242,283.75 0.00
9821125 TRUE TRUE N 39,111.25 0.00
9821126 TRUE TRUE N 35,647.50 1,250.00
9821130 TRUE TRUE N 124,947.00 0.00
9821133 TRUE TRUE N 11,275.00 0.00
9821142 TRUE TRUE N 0.00 0.00
9821143 TRUE TRUE N 43,636.25 0.00
9821144 TRUE TRUE N 0.00 0.00
9821145 TRUE TRUE N 0.00 0.00
9821146 TRUE TRUE N 58,125.00 0.00
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Grace Insured Letter Interest Engin Def Environmental Init TI/LC
Control Semi Mortgage Mortgage of Reserve Maint Escrow Escrow @ Reserve Future TI/LC Reserve
Number Defeased Annual Loan Loan Credit Loan Lockbox ($) @ Close Close (Cleaned) Escrows (Cleaned)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
9821149 TRUE TRUE N 0.00 0.00
9821150 TRUE TRUE N 0.00 0.00
9821151 TRUE TRUE N 0.00 0.00
9821152 TRUE TRUE N 30,313.00 0.00
9821154 TRUE TRUE N 72,375.00 0.00
9821155 TRUE TRUE N 101,038.75 0.00
9821156 TRUE TRUE N 5,000.00 687.50
9822000 TRUE TRUE N 0.00 0.00
9822001 TRUE TRUE N 0.00 0.00
9822003 TRUE TRUE N 0.00 0.00
9822004 TRUE TRUE N 2,375.00 0.00
9822005 TRUE TRUE N 0.00 0.00
9822007 TRUE TRUE N 16,000.00 0.00 100,000.00
9822012 TRUE N 0.00 0.00
9822014 TRUE TRUE N 0.00 0.00
9822015 TRUE N 6,875.00 31,250.00
9822016 TRUE N 83,775.00 1,500,000.00
9822017 TRUE TRUE N 5,250.00 0.00
9822018 TRUE TRUE N 4,962.50 0.00
9822026 TRUE TRUE N 34,932.50 0.00
9822027 TRUE FALSE N 0.00 0.00
9822029 TRUE N 650.00 0.00
9822030 TRUE N 25,937.50 0.00
9822031 TRUE TRUE N 10,250.00 37,500.00 25,749.96
9822032 TRUE N 25,637.50 0.00 200,000.00
9822033 TRUE TRUE N 20,500.00 0.00 1,040,000.00 180,000.00
9822034 TRUE TRUE N 7,610.00 0.00
9822035 TRUE N 9,506.25 0.00
9822036 TRUE TRUE N 20,312.50 0.00
9822037 TRUE N 8,187.50 0.00
9822038 TRUE N 12,362.50 0.00
9822039 TRUE TRUE N 0.00 0.00
9822041 TRUE N 0.00 0.00 82,000.00
9822042 TRUE TRUE N 28,687.50 0.00 500,000.00
9822043 TRUE TRUE N 7,625.00 0.00
9822044 TRUE TRUE N 82,855.00 None 39,900.00
9822045 TRUE TRUE N 1,250.00 0.00 100,000.00
9822046 TRUE N 15,375.00 0.00
9822047 TRUE TRUE N 0.00 0.00
9822048 TRUE TRUE N 18,737.50 0.00
9822049 TRUE TRUE N 13,500.00 0.00
9822050 TRUE TRUE N 0.00 0.00
9822051 TRUE TRUE N 39,093.75 0.00 54,250.00
9822053 TRUE TRUE N 0.00 0.00
9822056 TRUE TRUE N 26,715.00 0.00
9822058 TRUE TRUE N 4,812.50 0.00
9822059 TRUE TRUE N 18,562.50 0.00
9822060 TRUE TRUE N 18,375.00 0.00 39,000.00
9822061 TRUE TRUE N 0.00 0.00
9822062 TRUE TRUE N 22,937.50 0.00
9822063 TRUE TRUE N 220,637.50 0.00 400,000.00 Contingent $400,000
9822064 TRUE TRUE N 34,661.25 0.00 49,200.00
9822065 TRUE TRUE N 0.00 0.00
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Grace Insured Letter Interest Engin Def Environmental Init TI/LC
Control Semi Mortgage Mortgage of Reserve Maint Escrow Escrow @ Reserve Future TI/LC Reserve
Number Defeased Annual Loan Loan Credit Loan Lockbox ($) @ Close Close (Cleaned) Escrows (Cleaned)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
9822066 TRUE TRUE N 14,066.25 0.00
9822067 TRUE TRUE N 0.00 0.00
9822068 TRUE TRUE N 11,968.75 0.00
9822069 TRUE TRUE N 0.00 0.00
9822070 TRUE TRUE N 375.00 0.00
9822072 TRUE TRUE N 17,547.50 0.00
9822074 TRUE TRUE N 5,000.00 3,000.00
9822075 TRUE TRUE N 3,125.00 0.00 300,000.00
9822078 TRUE TRUE N 6,812.50 0.00
9822079 TRUE TRUE N 14,506.25 0.00 100,000.00
9822080 TRUE TRUE N 4,062.50 0.00
9822082 TRUE TRUE N 0.00 0.00
9822083 TRUE TRUE N 25,128.75 0.00
9822085 TRUE TRUE N 0.00 0.00
9822087 TRUE N 5,000.00 0.00
9822089 TRUE TRUE N 13,750.00 0.00
9822090 TRUE TRUE N 138,406.25 1,500.00 1,000,000.00
9822091 TRUE FALSE N 0.00 0.00
9822092 TRUE TRUE N 4,000.00 0.00
9822120 TRUE TRUE N 61,557.50 0.00
9822122 TRUE TRUE N 0.00 0.00
9822123 TRUE N 29,593.75 0.00 300,000.00 72,000.00
9822124 TRUE TRUE N 13,406.25 0.00
9822126 TRUE TRUE N 13,768.75 0.00
9822127 TRUE TRUE N 88,750.00 0.00 2,400,000.00 2,220,000.00
9822128 TRUE TRUE N 137,875.00 0.00
9822131 TRUE TRUE N 7,458.75 0.00
9822132 TRUE TRUE N 3,575.00 0.00
9822133 TRUE TRUE N 5,821.25 0.00
9822134 TRUE TRUE N 3,263.75 0.00
9822140 TRUE TRUE N 12,762.50 0.00
9822141 TRUE TRUE N 2,817.50 0.00
9822143 TRUE TRUE N 10,625.00 0.00
9822145 TRUE TRUE N 6,062.50 0.00
9822146 TRUE TRUE N 7,437.50 0.00 400,000.00
9822147 TRUE TRUE N 18,750.00 0.00 250,000.00
9822149 TRUE TRUE N 37,125.00 0.00
9822150 TRUE TRUE N 6,437.50 0.00
9822152 TRUE TRUE N 21,260.00 0.00 400,000.00
9822156 TRUE TRUE N 148,750.00 0.00
9822159 TRUE FALSE N 13,375.00 0.00 170,000.00
9822167 TRUE TRUE N 0.00 0.00
9822174 TRUE TRUE N 12,312.50 0.00
9822176 TRUE TRUE N 3,587.50 0.00
9822183 TRUE TRUE N 812.50 0.00
9822185 TRUE TRUE N 0.00 0.00
9822187 TRUE TRUE N 0.00 15,000.00
9822188 TRUE TRUE N 0.00 0.00
9822189 TRUE TRUE N 18,533.75 NA
9822191 TRUE TRUE N 35,250.00 0.00
9822192 TRUE TRUE N 62,348.75 0.00
9823000 TRUE FALSE Hard 0.00 0.00
9823009 TRUE FALSE Hard 0.00 0.00
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Grace Insured Letter Interest Engin Def Environmental Init TI/LC
Control Semi Mortgage Mortgage of Reserve Maint Escrow Escrow @ Reserve Future TI/LC Reserve
Number Defeased Annual Loan Loan Credit Loan Lockbox ($) @ Close Close (Cleaned) Escrows (Cleaned)
====================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
9823010 TRUE FALSE Hard 0.00 0.00
9823012 TRUE FALSE Hard 0.00 0.00
9823026 TRUE FALSE Hard 0.00 0.00
9823028 TRUE FALSE Hard 0.00 0.00
9823030 FALSE Hard 0.00 0.00
9823031 FALSE Hard 1,425.00 0.00
9823032 TRUE FALSE Hard 1,425.00 0.00
9823033 FALSE Hard 0.00 0.00
9823035 TRUE TRUE FALSE Hard 0.00 0.00
9823042 TRUE FALSE Hard 0.00 0.00
9823054 TRUE FALSE Hard 0.00 0.00
9823069 TRUE FALSE Hard 0.00 0.00
9823072 TRUE FALSE Hard 0.00 0.00
9823074 TRUE FALSE Hard 0.00 0.00
9823076 TRUE FALSE Hard 0.00 0.00
9823082 TRUE FALSE Hard 0.00 0.00
9823094 TRUE FALSE Hard 0.00 0.00
9823097 TRUE FALSE Hard 0.00 0.00
9823098 FALSE Hard 0.00 0.00
9823099 TRUE FALSE Hard 0.00 0.00
9823101 TRUE FALSE Hard 0.00 0.00
9823102 FALSE Hard 0.00 0.00
9823109 TRUE FALSE Hard 0.00 0.00
9823113 TRUE FALSE Hard 1,343.75 21,562.50
9823114 TRUE FALSE Hard 0.00 0.00
9823115 TRUE FALSE Hard 0.00 0.00
9823118 FALSE Hard 0.00 0.00
9823121 TRUE FALSE Hard 3,054.00 0.00
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Control
Number Other Escrows/Holdbacks/Credit Enhancements (Cleaned)
====================================================================================================================================
<S> <C>
10000
10003
10004
10019
20007 Held back $5,000 until the parking lot was re-surfaced
20022
20025
20037
20042
30013
30092 $18,750 escrowed (125% of estimated amount) for finishing list related to Eckerd occupancy
9821000
9821001
9821002
9821003
9821004
9821005
9821006
9821007
9821009
9821010
9821011
9821012
9821013
9821014
9821015
9821016
9821018
9821020
9821021
9821022
9821023
9821024
9821025
9821026
9821027
9821028
9821029
9821030
9821031
9821034
9821037
9821038
9821039
9821040
9821041
9821042
9821044
9821045
9821046
9821048
9821049 LOC, $780,000, 5 years. DSCR, CLTV and OLTV are net the LOC amount.
9821050
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Control
Number Other Escrows/Holdbacks/Credit Enhancements (Cleaned)
====================================================================================================================================
<S> <C>
9821051
9821052
9821053
9821054
9821056
9821057
9821058
9821059
9821060
9821061
9821062
9821063
9821064
9821065
9821066
9821067
9821068
9821069
9821071
9821072
9821074
9821075
9821076
9821081
9821082
9821097
9821098
9821099
9821100
9821101
9821102
9821103
9821104
9821105
9821107
9821109
9821111
9821112
9821115
9821121
9821122
9821122.1
9821122.2
9821124
9821125
9821126
9821130
9821133
9821142
9821143
9821144
9821145
9821146
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Control
Number Other Escrows/Holdbacks/Credit Enhancements (Cleaned)
====================================================================================================================================
<S> <C>
9821149
9821150
9821151
9821152
9821154
9821155
9821156
9822000
9822001
9822003
9822004
9822005
9822007
9822012
9822014
9822015
9822016
9822017
9822018
9822026
9822027
9822029
9822030
9822031
9822032
9822033
9822034
9822035
9822036
9822037 $ 1,265,000 held for completion of parking structure
9822038
9822039
9822041 $ 28,762.25 was held until cleaners and Sub shop open for business.
9822042
9822043
9822044
9822045
9822046
9822047
9822048
9822049
9822050
9822051
9822053
9822056
9822058
9822059
9822060
9822061
9822062
9822063
9822064
9822065 $650,000 held back until Dragon House, Jitterbeans, and Hair Cuttery open for business
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Control
Number Other Escrows/Holdbacks/Credit Enhancements (Cleaned)
====================================================================================================================================
<S> <C>
9822066
9822067
9822068
9822069
9822070
9822072
9822074
9822075
9822078
9822079
9822080
9822082
9822083
9822085
9822087
9822089
9822090
9822091
9822092
9822120
9822122
9822123
9822124
9822126
9822127
9822128
9822131
9822132
9822133
9822134
9822140
9822141
9822143
9822145
9822146
9822147
9822149
9822150
9822152 A $300,000 Letter of Credit for the JC Penney rollover. LC can be used for TI
9822156 and LC if needed. LC will be released if JC Penney renews.
9822159
9822167
9822174
9822176
9822183
9822185
9822187
9822188
9822189 $575,000 discretionary escrow for Holiday Inn Select upgrade
9822191
9822192
9823000
9823009
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Control
Number Other Escrows/Holdbacks/Credit Enhancements (Cleaned)
====================================================================================================================================
<S> <C>
9823010
9823012
9823026
9823028
9823030
9823031
9823032
9823033
9823035
9823042
9823054
9823069
9823072
9823074
9823076
9823082
9823094
9823097
9823098
9823099
9823101
9823102
9823109
9823113
9823114
9823115
9823118
9823121
</TABLE>
<PAGE>
Exhibit B
Mortgage Loan File Exceptions
<PAGE>
<TABLE>
<CAPTION>
LOANID LNAME DOCTYPE EXNUM TEXT MEMOTEXT
<S> <C> <C> <C> <C> <C>
321999C1 GATEWAY SHOPPIN NOTE 01 Missing NOTE COPY IN FILE
991999C1 CVS WALTHAM MAI NOTE 01 Missing COPY OF NOTE RECEIVED
1271999C1 48TH EXECUTIVE NOTE 01 Missing COPY RECEIVED
1861999C1 MARINA SHORES S NOTE 01 Missing COPY RECEIVED
2051999C1 PENDELTON PINES NOTE 01 Missing COPY RECEIVED
2171999C1 LITTLE LOTTS CR NOTE 01 Missing COPY OF NOTE RECEIVED
2191999C1 KNOLLWOOD APART NOTE 01 Missing
2261999C1 SEARS UNION CEN NOTE 01 Missing REC'D COPY OF AMENDED AND RESTATED NOTE
FOR CORRECT AMOUNT
2371998C1 CONVENT AVE. NOTE 01 Missing REC'D COPY OF AMENDED NOTE NEED ORIGINAL
NOTE FOR 800,000
41999C1 PRINCE GEORGE'S NOTE 04 Pages Are Missing From Document NOTE PAGES 1 THRU 3 MISSING
2261999C1 SEARS UNION CEN NOTE 04 Pages Are Missing From Document MISSING PAGE 11
231999C1 LOWES HATTIESBU MODF 02 Document Is Copy, Need Original NOTE MODIFICATION IS A COPY
2151999C1 ASHTON PINES/SU MODF 02 Document Is Copy, Need Original NOTE MODIFICATION IS A COPY
11999C1 ONE CAPITAL CIT ASNV 01 Missing FUNB TO NORWEST MISSING
21999C1 TURNBERRY TOWER ASNV 01 Missing FUNB TO NORWEST MISSING
31999C1 CABIN JOHN MALL ASNV 01 Missing FUNB TO NORWEST MISSING
41999C1 PRINCE GEORGE'S ASNV 01 Missing FUNB TO NORWEST MISSING
51999C1 INLAND EMPIRE C ASNV 01 Missing FUNB TO NORWEST MISSING
61999C1 NEW BRIGHTON MA ASNV 01 Missing FUNB TO NORWEST MISSING
71999C1 CLARINBRIDGE ASNV 01 Missing FUNB TO NORWEST MISSING
81999C1 ROYAL PALM KEY ASNV 01 Missing FUNB TO NORWEST MISSING
91999C1 SADDLE CLUB ASNV 01 Missing FUNB TO NORWEST MISSING
101999C1 CORAL KEY APART ASNV 01 Missing FUNB TO NORWEST MISSING
111999C1 HAMILTON (5) ASNV 01 Missing FUNB TO NORWEST MISSING
121999C1 HARBOUR KEY APA ASNV 01 Missing FUNB TO NORWEST MISSING
131999C1 GARDENWOOD ASNV 01 Missing FUNB TO NORWEST MISSING
141999C1 MCALLEN EMBASSY ASNV 01 Missing FUNB TO NORWEST MISSING
151999C1 PANAMA CITY SQU ASNV 01 Missing FUNB TO NORWEST MISSING
161999C1 THE MEADOWS AT ASNV 01 Missing FUNB TO NORWEST MISSING
171999C1 POINTE NORTH AP ASNV 01 Missing FUNB TO NORWEST MISSING
181999C1 PARK LEE APARTM ASNV 01 Missing FUNB TO NORWEST MISSING
191999C1 DUTCH VILLAGE A ASNV 01 Missing FUNB TO NORWEST MISSING
201999C1 LINCOLN PARK WE ASNV 01 Missing FUNB TO NORWEST MISSING
211999C1 LOWE'S QUEENSBU ASNV 01 Missing FUNB TO NORWEST MISSING
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
221999C1 9201 FOURTH AVE ASNV 01 Missing FUNB TO NORWEST MISSING
231999C1 LOWES HATTIESBU ASNV 01 Missing FUNB TO NORWEST MISSING
241999C1 VALLEY EAST PLA ASNV 01 Missing FUNB TO NORWEST MISSING
251999C1 TOWAMENCIN SHOP ASNV 01 Missing FUNB TO NORWEST MISSING
261999C1 HOLIDAY INN - ASNV 01 Missing FUNB TO NORWEST MISSING
271999C1 WESTLAKE VILLAG ASNV 01 Missing FUNB TO NORWEST MISSING
281999C1 LEESBURG PLAZA ASNV 01 Missing FUNB TO NORWEST MISSING
291999C1 GRASS VALLEY SH ASNV 01 Missing FUNB TO NORWEST MISSING
301999C1 BUTLER RIDGE/BU ASNV 01 Missing FUNB TO NORWEST MISSING
311999C1 NATCHEZ MALL ASNV 01 Missing FUNB TO NORWEST MISSING
321999C1 GATEWAY SHOPPIN ASNV 01 Missing FUNB TO NORWEST MISSING
331999C1 DYERSBURG MALL ASNV 01 Missing FUNB TO NORWEST MISSING
341999C1 EDWARDS SUPERMA ASNV 01 Missing FUNB TO NORWEST MISSING
351999C1 KELTON TOWERS ASNV 01 Missing FUNB TO NORWEST MISSING
361999C1 ROCHESTER APART ASNV 01 Missing FUNB TO NORWEST MISSING
371999C1 MOORINGS APARTM ASNV 01 Missing FUNB TO NORWEST MISSING
381999C1 8578 SANTA MONI ASNV 01 Missing FUNB TO NORWEST MISSING
391999C1 321 EAST 22ND S ASNV 01 Missing FUNB TO NORWEST MISSING
401999C1 SUGARLOAF ESTAT ASNV 01 Missing FUNB TO NORWEST MISSING
411999C1 HOLIDAY INN ROC ASNV 01 Missing FUNB TO NORWEST MISSING
421999C1 HAMPTON INN-AIR ASNV 01 Missing FUNB TO NORWEST MISSING
431999C1 THE CARLTON APA ASNV 01 Missing FUNB TO NORWEST MISSING
441999C1 BETHLEHEM HAMPT ASNV 01 Missing FUNB TO NORWEST MISSING
451999C1 ARROWHEAD APART ASNV 01 Missing FUNB TO NORWEST MISSING
461999C1 CENTRE AT WOODS ASNV 01 Missing FUNB TO NORWEST MISSING
471999C1 LEXINGTON DOWNS ASNV 01 Missing FUNB TO NORWEST MISSING
481999C1 THE MONEY STORE ASNV 01 Missing FUNB TO NORWEST MISSING
491999C1 MEADOWS MALL ASNV 01 Missing FUNB TO NORWEST MISSING
501999C1 BUNZL HICKSVILL ASNV 01 Missing FUNB TO NORWEST MISSING
511999C1 WESTGROVE APART ASNV 01 Missing FUNB TO NORWEST MISSING
521999C1 HAMPTON INN MIA ASNV 01 Missing FUNB TO NORWEST MISSING
531999C1 FOREST TOWERS ASNV 01 Missing FUNB TO NORWEST MISSING
541999C1 WOODMONT CORNER ASNV 01 Missing FUNB TO NORWEST MISSING
551999C1 THE MILLENIUM B ASNV 01 Missing FUNB TO NORWEST MISSING
561999C1 STRATFORD SQUAR ASNV 01 Missing FUNB TO NORWEST MISSING
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
571999C1 TURTLE CREEK AP ASNV 01 Missing FUNB TO NORWEST MISSING
581999C1 BRIARWOOD HEALT ASNV 01 Missing FUNB TO NORWEST MISSING
591999C1 MOTEL 6 1118 AU ASNV 01 Missing FUNB TO NORWEST MISSING
601999C1 GATEWAY PLAZA ASNV 01 Missing FUNB TO NORWEST MISSING
611999C1 THE PINES AT CA ASNV 01 Missing FUNB TO NORWEST MISSING
621999C1 REDWOOD HEIGHTS ASNV 01 Missing FUNB TO NORWEST MISSING
631999C1 BRIARWOOD ASNV 01 Missing FUNB TO NORWEST MISSING
641999C1 RITE AID - CITR ASNV 01 Missing FUNB TO NORWEST MISSING
651999C1 BEST WESTERN IN ASNV 01 Missing FUNB TO NORWEST MISSING
661999C1 SOUTHEASTERN EY ASNV 01 Missing FUNB TO NORWEST MISSING
671999C1 FRESH WAREHOUSI ASNV 01 Missing FUNB TO NORWEST MISSING
681999C1 SUTTON PLAZA ASNV 01 Missing FUNB TO NORWEST MISSING
691999C1 EMPIRE MEDICAL ASNV 01 Missing FUNB TO NORWEST MISSING
701999C1 ASHWOOD PLACE ASNV 01 Missing FUNB TO NORWEST MISSING
711999C1 BEST WESTERN MA ASNV 01 Missing FUNB TO NORWEST MISSING
721999C1 BIRCHWOOD APART ASNV 01 Missing FUNB TO NORWEST MISSING
731999C1 LA CRESTA SHOPP ASNV 01 Missing FUNB TO NORWEST MISSING
741999C1 11640 KIOWA AVE ASNV 01 Missing FUNB TO NORWEST MISSING
751999C1 MOTEL 6 1273 PO ASNV 01 Missing FUNB TO NORWEST MISSING
761999C1 VALENCIA SHOPPI ASNV 01 Missing FUNB TO NORWEST MISSING
771999C1 DEVILLE ASNV 01 Missing FUNB TO NORWEST MISSING
781999C1 RIDGEWOOD APART ASNV 01 Missing FUNB TO NORWEST MISSING
791999C1 FAIRFIELD INN - ASNV 01 Missing FUNB TO NORWEST MISSING
801999C1 SILVER HILL APA ASNV 01 Missing FUNB TO NORWEST MISSING
811999C1 KIRNWOOD ASNV 01 Missing FUNB TO NORWEST MISSING
821999C1 MOTEL 6 352 RAP ASNV 01 Missing FUNB TO NORWEST MISSING
831999C1 MILTON ROAD ASNV 01 Missing FUNB TO NORWEST MISSING
841999C1 RAINBOW EXPRESS ASNV 01 Missing FUNB TO NORWEST MISSING
851999C1 FAIRFIELD INN B ASNV 01 Missing FUNB TO NORWEST MISSING
861999C1 THE HIGHLANDS ASNV 01 Missing FUNB TO NORWEST MISSING
871999C1 PLANTERS CROSSI ASNV 01 Missing FUNB TO NORWEST MISSING
881999C1 HAMILTONIAN GAR ASNV 01 Missing FUNB TO NORWEST MISSING
891999C1 BENNINGTON SQUA ASNV 01 Missing FUNB TO NORWEST MISSING
901999C1 DAYS INN CENTRA ASNV 01 Missing FUNB TO NORWEST MISSING
911999C1 BOYKIN CENTER ASNV 01 Missing FUNB TO NORWEST MISSING
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
921999C1 HULEN GARDENS ASNV 01 Missing FUNB TO NORWEST MISSING
931999C1 DUVAL MANOR ASS ASNV 01 Missing FUNB TO NORWEST MISSING
941999C1 THE LENOX ASNV 01 Missing FUNB TO NORWEST MISSING
951999C1 SILVER BLUE LAK ASNV 01 Missing FUNB TO NORWEST MISSING
961999C1 LAYTON CROSSING ASNV 01 Missing FUNB TO NORWEST MISSING
971998C1 COMFORT INN - L ASNV 01 Missing FUNB TO NORWEST MISSING
981999C1 CASTILIAN LAKE ASNV 01 Missing FUNB TO NORWEST MISSING
991999C1 CVS WALTHAM MAI ASNV 01 Missing FUNB TO NORWEST MISSING
1001999C1 BEST WESTERN IN ASNV 01 Missing FUNB TO NORWEST MISSING
1011999C1 112, 114, 116,1 ASNV 01 Missing FUNB TO NORWEST MISSING
1021999C1 GWINNETT PLACE ASNV 01 Missing FUNB TO NORWEST MISSING
1031999C1 ST. JOHNS VILLA ASNV 01 Missing FUNB TO NORWEST MISSING
1041999C1 SPANISH OAKS ASNV 01 Missing FUNB TO NORWEST MISSING
1051999C1 ABBEY APTS. ASNV 01 Missing FUNB TO NORWEST MISSING
1061999C1 ROYAL PALMS ASNV 01 Missing FUNB TO NORWEST MISSING
1071999C1 MOTEL 6 1261 HO ASNV 01 Missing FUNB TO NORWEST MISSING
1081999C1 BEST BUY STORE ASNV 01 Missing FUNB TO NORWEST MISSING
1091999C1 DAYS INN OCEANS ASNV 01 Missing FUNB TO NORWEST MISSING
1101999C1 WELBY PARK ESTA ASNV 01 Missing FUNB TO NORWEST MISSING
1111999C1 MOTEL 6 284 SOU ASNV 01 Missing FUNB TO NORWEST MISSING
1121999C1 COOPERS POND AP ASNV 01 Missing FUNB TO NORWEST MISSING
1131999C1 ROUND GROVE CRO ASNV 01 Missing FUNB TO NORWEST MISSING
1141999C1 BEST WESTERN ST ASNV 01 Missing FUNB TO NORWEST MISSING
1151999C1 RITE AID LITTLE ASNV 01 Missing FUNB TO NORWEST MISSING
1161999C1 7 PERIMETER ROA ASNV 01 Missing FUNB TO NORWEST MISSING
1171999C1 CELLUAR ONE SHO ASNV 01 Missing FUNB TO NORWEST MISSING
1181998C1 GREENRIDGE APAR ASNV 01 Missing FUNB TO NORWEST MISSING
1191999C1 NAPLES PLACE ASNV 01 Missing FUNB TO NORWEST MISSING
1201999C1 SUN CENTER ASNV 01 Missing FUNB TO NORWEST MISSING
1211999C1 SIGNAL HILL APA ASNV 01 Missing FUNB TO NORWEST MISSING
1221999C1 LAKEVIEW TOWNHO ASNV 01 Missing FUNB TO NORWEST MISSING
1231999C1 GRANVILLE APTS. ASNV 01 Missing FUNB TO NORWEST MISSING
1241999C1 CHESAPEAKE STAT ASNV 01 Missing FUNB TO NORWEST MISSING
1251999C1 CHAPEL TRAIL CO ASNV 01 Missing FUNB TO NORWEST MISSING
1261999C1 GATEWAY PLAZA-L ASNV 01 Missing FUNB TO NORWEST MISSING
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
1271999C1 48TH EXECUTIVE ASNV 01 Missing FUNB TO NORWEST MISSING
1281999C1 BROOKSTONE MANO ASNV 01 Missing FUNB TO NORWEST MISSING
1291999C1 GARDENA WEST PA ASNV 01 Missing FUNB TO NORWEST MISSING
1301999C1 WESTGATE APARTM ASNV 01 Missing METROPOLITAN FUNDING TO NORWEST
1311999C1 MIDTOWN MARKET ASNV 01 Missing FUNB TO NORWEST MISSING
1321999C1 EZ8 MOTEL (GOOD ASNV 01 Missing FUNB TO NORWEST MISSING
1331999C1 GRANDVIEW PLAZA ASNV 01 Missing FUNB TO NORWEST MISSING
1341999C1 RITE AID NORFOL ASNV 01 Missing FUNB TO NORWEST MISSING
1351999C1 WALGREEN PEMBRO ASNV 01 Missing FUNB TO NORWEST MISSING
1361999C1 SAND COVE APART ASNV 01 Missing FUNB TO NORWEST MISSING
1371999C1 AMERIHOST INN / ASNV 01 Missing FUNB TO NORWEST MISSING
1381999C1 WALGREEN MELBOU ASNV 01 Missing FUNB TO NORWEST MISSING
1391999C1 GREENLAWN APART ASNV 01 Missing FUNB TO NORWEST MISSING
1401999C1 TENNESSEE VILLA ASNV 01 Missing FUNB TO NORWEST MISSING
1411999C1 HOLIDAY INN EXP ASNV 01 Missing FUNB TO NORWEST MISSING
1421999C1 NEW MEADOWBROOK ASNV 01 Missing METROPOLITAN FUNDING TO NORWEST
1431999C1 RITE AID SAGINA ASNV 01 Missing FUNB TO NORWEST MISSING
1441999C1 RITE AID DOVER ASNV 01 Missing FUNB TO NORWEST MISSING
1451999C1 MOTEL 6 134 SAN ASNV 01 Missing FUNB TO NORWEST MISSING
1461999C1 TOWN WEST PLAZA ASNV 01 Missing FUNB TO NORWEST MISSING
1471999C1 VINTAGE SQUARE ASNV 01 Missing FUNB TO NORWEST MISSING
1481999C1 RITE AID - DIXI ASNV 01 Missing FUNB TO NORWEST MISSING
1491999C1 COHANNET VILLAG ASNV 01 Missing FUNB TO NORWEST MISSING
1501999C1 SHELBOURNE TOWE ASNV 01 Missing FUNB TO NORWEST MISSING
1511999C1 HOLIDAY INN EXP ASNV 01 Missing FUNB TO NORWEST MISSING
1521999C1 WALGREEN JACKSO ASNV 01 Missing FUNB TO NORWEST MISSING
1531999C1 SOUTHAMPTON APA ASNV 01 Missing METROPOLITAN FUNDING TO NORWEST
1541999C1 4600 N. HARLEM ASNV 01 Missing FUNB TO NORWEST MISSING
1551999C1 SOUTHERN PINES ASNV 01 Missing FUNB TO NORWEST MISSING
1561999C1 BOCA WINDS ASNV 01 Missing FUNB TO NORWEST MISSING
1571999C1 WILSON SQUARE S ASNV 01 Missing FUNB TO NORWEST MISSING
1581999C1 GLENSIDE KMART ASNV 01 Missing FUNB TO NORWEST MISSING
1591999C1 BEST WESTERN IN ASNV 01 Missing FUNB TO NORWEST MISSING
1601999C1 COMFORT INN TRO ASNV 01 Missing FUNB TO NORWEST MISSING
1611999C1 ECKERD POMPANO ASNV 01 Missing FUNB TO NORWEST MISSING
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
1621999C1 WALGREEN HIALEA ASNV 01 Missing FUNB TO NORWEST MISSING
1631999C1 VILLA EAST ASNV 01 Missing FUNB TO NORWEST MISSING
1641999C1 COMCAST DATA CE ASNV 01 Missing FUNB TO NORWEST MISSING
1651999C1 F & W OFFICE PA ASNV 01 Missing FUNB TO NORWEST MISSING
1661999C1 WALGREENS FT WO ASNV 01 Missing FUNB TO NORWEST MISSING
1671999C1 RITE AID LOUISV ASNV 01 Missing FUNB TO NORWEST MISSING
1681999C1 WARNER SELF STO ASNV 01 Missing FUNB TO NORWEST MISSING
1691999C1 ECKERD - CHARLO ASNV 01 Missing FUNB TO NORWEST MISSING
1701999C1 1021/1101/1103- ASNV 01 Missing FUNB TO NORWEST MISSING
1711999C1 COUNTRY CLUB ES ASNV 01 Missing FUNB TO NORWEST MISSING
1721999C1 SACK AND SAVE G ASNV 01 Missing FUNB TO NORWEST MISSING
1731999C1 RITE AID - PORT ASNV 01 Missing FUNB TO NORWEST MISSING
1741999C1 THRIPPENCE ASNV 01 Missing FUNB TO NORWEST MISSING
1751999C1 SALEM PINES APA ASNV 01 Missing METROPOLITAN FUNDING TO NORWEST
1761999C1 GASTON MANOR ASNV 01 Missing FUNB TO NORWEST MISSING
1771999C1 FOX RUN ASNV 01 Missing FUNB TO NORWEST MISSING
1781999C1 RAMADA LIMITED ASNV 01 Missing FUNB TO NORWEST MISSING
1791999C1 ELMS APARTMENT ASNV 01 Missing FUNB TO NORWEST MISSING
1801999C1 MARLAINE NORTH ASNV 01 Missing FUNB TO NORWEST MISSING
1811999C1 WOODBINE GARDEN ASNV 01 Missing FUNB TO NORWEST MISSING
1821999C1 ARBOR APARTMENT ASNV 01 Missing FUNB TO NORWEST MISSING
1831999C1 SHOPPES AT HOME ASNV 01 Missing FUNB TO NORWEST MISSING
1841999C1 1025 W. ST. GEO ASNV 01 Missing FUNB TO NORWEST MISSING
1851999C1 TOWER PLAZA ASNV 01 Missing FUNB TO NORWEST MISSING
1861999C1 MARINA SHORES S ASNV 01 Missing FUNB TO NORWEST MISSING
1871999C1 HILLTOP APARTME ASNV 01 Missing FUNB TO NORWEST MISSING
1881999C1 103 HEMENWAY ASNV 01 Missing ARBOUR NATIONAL COMMERCIAL MORTG TO NORWEST
1891999C1 RITE AID BATTLE ASNV 01 Missing FUNB TO NORWEST MISSING
1901999C1 ENGLISH GARDEN ASNV 01 Missing FUNB TO NORWEST MISSING
1911999C1 2995 BASELINE O ASNV 01 Missing FUNB TO NORWEST MISSING
1921999C1 GRANDVIEW PLAZA ASNV 01 Missing FUNB TO NORWEST MISSING
1931999C1 MADISON SQUARE ASNV 01 Missing FUNB TO NORWEST MISSING
1941999C1 HICKORY MANOR ASNV 01 Missing FUNB TO NORWEST MISSING
1951999C1 MICHIGAN MARKET ASNV 01 Missing FUNB TO NORWEST MISSING
1961999C1 COMFORT INN MAX ASNV 01 Missing FUNB TO NORWEST MISSING
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
1971999C1 THE CROSSINGS A ASNV 01 Missing FUNB TO NORWEST MISSING
1981999C1 CVS COLUMBIA S ASNV 01 Missing FUNB TO NORWEST MISSING
1991999C1 SANTA BARBARA A ASNV 01 Missing FUNB TO NORWEST MISSING
2001999C1 HAWS MEMORIAL N ASNV 01 Missing FUNB TO NORWEST MISSING
2011999C1 ECKERD DRUGSTOR ASNV 01 Missing FUNB TO NORWEST MISSING
2021999C1 LAKE PLACID INN ASNV 01 Missing FUNB TO NORWEST MISSING
2031999C1 HILLTOP HOUSE A ASNV 01 Missing FUNB TO NORWEST MISSING
2041999C1 CVS YORK RICHLA ASNV 01 Missing FUNB TO NORWEST MISSING
2051999C1 PENDELTON PINES ASNV 01 Missing FUNB TO NORWEST MISSING
2061999C1 PIGGLY WIGGLY ASNV 01 Missing FUNB TO NORWEST MISSING
2071999C1 CVS ROCHESTER H ASNV 01 Missing FUNB TO NORWEST MISSING
2081999C1 PARK SOUTH APAR ASNV 01 Missing FUNB TO NORWEST MISSING
2091999C1 SPRUCEMONT APAR ASNV 01 Missing FUNB TO NORWEST MISSING
2101999C1 ABERCORN STREET ASNV 01 Missing FUNB TO NORWEST MISSING
2111999C1 WINTERFIELD ASNV 01 Missing FUNB TO NORWEST MISSING
2121999C1 HAZEL MINI STOR ASNV 01 Missing FUNB TO NORWEST MISSING
2131999C1 29 CORNELIA STR ASNV 01 Missing MULTI LOAN MC TO NORWEST
2141999C1 2420 ROSWELL ASNV 01 Missing FUNB TO NORWEST MISSING
2151999C1 ASHTON PINES/SU ASNV 01 Missing FUNB TO NORWEST MISSING
2161999C1 COLONIAL HEALTH ASNV 01 Missing FUNB TO NORWEST MISSING
2171999C1 LITTLE LOTTS CR ASNV 01 Missing FUNB TO NORWEST MISSING
2181999C1 PARK REGENCY AP ASNV 01 Missing METROPOLITAN FUNDING TO NORWEST
2191999C1 KNOLLWOOD APART ASNV 01 Missing FUNB TO NORWEST MISSING
2201999C1 IHOP DOUGLASVIL ASNV 01 Missing FUNB TO NORWEST MISSING
2211999C1 415-417 DAVIS; ASNV 01 Missing FUNB TO NORWEST MISSING
2221999C1 TIMBER TRAILS ASNV 01 Missing FUNB TO NORWEST MISSING
2231999C1 THE LANDINGS ASNV 01 Missing FUNB TO NORWEST MISSING
2241999C1 825 & 835 WISCO ASNV 01 Missing FUNB TO NORWEST MISSING
2251999C1 GASTONIA VILLAG ASNV 01 Missing FUNB TO NORWEST MISSING
2261999C1 SEARS UNION CEN ASNV 01 Missing FUNB TO NORWEST MISSING
2271999C1 OAK KNOLL NURSI ASNV 01 Missing FUNB TO NORWEST MISSING
2281999C1 VISTA BONITA AP ASNV 01 Missing FUNB TO NORWEST MISSING
2291999C1 AZALEA APARTMEN ASNV 01 Missing FUNB TO NORWEST MISSING
2301999C1 CVS/REVCO DRUGS ASNV 01 Missing FUNB TO NORWEST MISSING
2311999C1 RENE VILLAGE ASNV 01 Missing LIBERTY TO NORWEST
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
2321999C1 VANDERMERE MOBI ASNV 01 Missing FUNB TO NORWEST MISSING
2331999C1 ASHTON POINTE/E ASNV 01 Missing FUNB TO NORWEST MISSING
2341999C1 925 BRYANT STRE ASNV 01 Missing FUNB TO NORWEST MISSING
2351999C1 SCARBOROUGH MEW ASNV 01 Missing FUNB TO NORWEST MISSING
2361999C1 131-133 NORWOOD ASNV 01 Missing FUNB TO NORWEST MISSING
2371999C1 CONVENT AVE. ASNV 01 Missing METROPOLITAN FUNDING TO NORWEST
2381999C1 SHARON ARMS ASNV 01 Missing FUNB TO NORWEST MISSING
30A1999C1 BUTLER ARMS ASNV 01 Missing FUNB TO NORWEST MISSING
30B1999C1 BUTLER RIDGE ASNV 01 Missing FUNB TO NORWEST MISSING
</TABLE>
<PAGE>
Exhibit C
Form of Opinion
I have acted as counsel to First Union National Bank ("FUNB"). First
Union Commercial Mortgage Securities, Inc. will acquire certain mortgage loans
from FUNB pursuant to the Mortgage Loan Purchase Agreement, dated as of December
1, 1998 (the "Mortgage Loan Purchase Agreement"). Capitalized terms used but not
defined herein shall have the meanings set forth in the Mortgage Loan Purchase
Agreement.
You have asked for my opinion regarding the due authorization of FUNB
to enter into the Mortgage Loan Purchase Agreement.
As to matters of fact material to this opinion, I have relied, without
independent investigation on (i) the representations and warranties of FUNB in
the Mortgage Loan Purchase Agreement, (ii) relevant resolutions of the Board of
Directors of FUNB, (iii) certificates of responsible officers of FUNB and (iv)
certificates of public officials.
In this connection, I have examined or have caused to be examined on
my behalf, a copy of the Mortgage Loan Purchase Agreement and such other
documents and instruments which I have deemed necessary or appropriate in
connection with this opinion.
I have relied on originals or copies, certified or otherwise
identified to my satisfaction, of the certificate of incorporation and by-laws
of FUNB, records of proceedings taken by FUNB, and such other corporate
documents and records of FUNB, and have made such other investigations as I have
deemed relevant or necessary for the purpose of this opinion. I have assumed,
without independent investigation, the genuineness of all signatures (other than
those of officers of FUNB), the authenticity of all documents submitted to me as
originals and the conformity to original documents of all documents submitted to
me as certified, conformed or reproduction copies.
On the basis of and subject to the foregoing, it is my opinion that:
(1) FUNB is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware, with the corporate power
and authority to transact the business contemplated by the Mortgage Loan
Purchase Agreement, and it has the requisite corporate power and authority to.
execute and deliver the Mortgage Loan Purchase Agreement and to perform and
observe the terms and conditions thereof.
<PAGE>
(2) The Mortgage Loan Purchase Agreement has been duly authorized,
executed and delivered by FUNB.
(3) The execution, delivery and performance by FUNB of the Mortgage
Loan Purchase Agreement will not conflict with, result in a breach of, or
constitute a default under any material term of FUNB's certificate of
incorporation or bylaws, any term or provision of any material contract,
agreement or other instrument known to me to which FUNB is a party or by which
it is bound, or, to the best of my knowledge without independent investigation,
any order, judgment, writ, injunction or decree known to me of any court or
governmental authority having jurisdiction over FUNB.
(4) The Mortgage Loan Purchase Agreement constitutes, assuming due
authorization, execution and delivery by the other party thereto, the valid and
binding obligation of FUNB enforceable against FUNB in accordance with its
terms, except as such enforcement may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of creditors'
rights generally, (b) general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and (c)
limitations of public policy under applicable securities laws as to rights of
indemnity thereunder.
In furnishing the foregoing opinions, I express no opinion other than
as to the general corporation law of the State of Delaware, the law of the State
of New York and the federal law of the United States of America.
This opinion is being delivered to you for your sole use in connection
with the above-referenced transactions and may not be used or relied upon by any
other person, firm or entity in any other context for any other purpose. This
opinion may not be quoted in whole or in part, nor may copies be furnished or
delivered to any other person without the consent of FUNB except that you may
furnish copies to (i) your independent auditors and attorneys, (ii) any United
States, state or local authority having jurisdiction over you, (iii) pursuant to
the order of any legal process of any court of competent jurisdiction or
governmental agency, and (iv) in connection with any legal action arising in
connection with the above-referenced transactions.
Very truly yours,
February 4, 1998
To Each of the Parties Listed on Schedule A:
Re: First Union Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates,
FUNB Series 1999-C1
Ladies and Gentlemen:
On December 30, 1998 (the "Closing Date"), First Union National Bank
("FUNB") transferred certain multifamily and commercial mortgage loans (the
"Mortgage Loans") to First Union Commercial Mortgage Securities, Inc., an
affiliate of FUNB (the "Depositor"), pursuant to a Mortgage Loan Purchase
Agreement, dated as of December 1, 1998 (the "Mortgage Loan Purchase
Agreement"), between the Depositor and FUNB. On the Closing Date, the Depositor
issued Commercial Mortgage Pass-Through Certificates, FUNB Series 1999-C1 (the
"Certificates") pursuant to a Pooling and Servicing Agreement, dated as of
December 1, 1998 (as amended or supplemented from time to time, the "Pooling and
Servicing Agreement"), among the Depositor, as depositor, FUNB, as master
servicer, Lennar Partners, Inc., as special servicer, and Norwest Bank
Minnesota, National Association, as trustee. The Certificates consist of (i) the
Class A-1, Class A-2, Class IO-1, Class B, Class C, Class D and Class E
Certificates (collectively, the "Retained Certificates"), (ii) the Class IO-2,
Class F, Class G and Class H Certificates (collectively, the "Privately Offered
Certificates" and, together with the Retained Certificates, the "Regular
Certificates"), (iii) the Class R-I Certificates, (iv) the Class R-II
Certificates, and (v) the Class R-III Certificates.
On the Closing Date, the Depositor transferred all of the Retained
Certificates to FUNB and sold all of the Privately Offered Certificates to
Morgan Stanley & Co. Incorporated ("Morgan Stanley") pursuant to a Certificate
Purchase Agreement, dated December 29, 1998 (the "Certificate Purchase
Agreement"), among the Depositor, as seller, Morgan Stanley, as purchaser, and
FUNB.
On the date hereof, FUNB is transferring the Retained Certificates to the
Depositor and the Depositor is selling the Retained Certificates (other than a
portion of the Class IO-1 Certificates) to Morgan Stanley and First Union
Capital Markets, a division of Wheat First Securities, Inc. (collectively, the
"Underwriters") pursuant to an Underwriting Agreement, dated January 21, 1999,
among the Depositor, the Underwriters and FUNB.
<PAGE>
Prior to February 1, 1999 (the "Transition Date"), the Regular Certificates
represented "regular interests" in REMIC III that was established on the Closing
Date pursuant to the Pooling and Servicing Agreement. On the Transition Date,
REMIC IV was established pursuant to the Pooling and Servicing Agreement and, in
furtherance thereof, the Depositor issued the Class R-IV Certificates and the
then-current holders of the Regular Certificates were deemed to have exchanged
the "regular interests" in REMIC III that were then represented by such Regular
Certificates for the "regular interests" in REMIC IV that will be represented by
the Regular Certificates from and after the Transition Date.
We have acted as counsel to the Depositor and FUNB in connection with these
matters and above-described agreements. The Mortgage Loan Purchase Agreement,
the Pooling and Servicing Agreement, the Certificate Purchase Agreement and the
Underwriting Agreement are referred to collectively herein as the "Agreements".
All capitalized terms not defined herein have the meanings set forth in the
Agreements.
In rendering this opinion letter, we have examined the Agreements and such
records and other documents as we have deemed necessary. We have assumed the
conformity of the Mortgage Loans and related documents (collectively, the
"Mortgage Documents") to the requirements of the Agreements and that there is
not and will not be any other agreement among or between any of the parties to
the Agreements that modifies or otherwise supplements the agreements of those
parties as expressed in the Agreements. As to matters of fact, we have examined
and relied upon representations of the Seller and the Depositor contained in the
Agreements and, where we have deemed appropriate, representations or
certifications of officers of the parties to the Agreements or public officials.
We have assumed the authenticity of all documents submitted to us as originals,
the genuineness of all signatures, the legal capacity of natural persons and the
conformity to the originals of all documents submitted to us as copies. We have
assumed that all parties had the corporate power and authority to enter into and
perform all obligations thereunder. As to such parties, we also have assumed the
due authorization by all requisite corporate action, the due execution and
delivery and, except with respect to the Depositor, the enforceability of such
documents.
In rendering this opinion letter, we do not express any opinion concerning
any law other than the law of the State of New York, the corporate law of the
State of Delaware and the federal law of the United States. In addition, we do
not express any opinion on any issue not expressly addressed below.
Based upon and subject to the foregoing, we are of the opinion that,
assuming compliance with all the applicable provisions of the Pooling and
Servicing Agreement, (1) REMIC I will continue to qualify as a real estate
mortgage investment conduit (a "REMIC") within the meaning of Sections 860A
through 860G of the
-2-
<PAGE>
Internal Revenue Code of 1986 and the Treasury Regulations thereunder (the
"REMIC Provisions"), and the REMIC I Regular Interests will continue to evidence
"regular interests" and the Class R-I Certificates will continue to evidence the
sole class of "residual interests" in REMIC I (as both such terms are defined in
the REMIC Provisions in effect on the date hereof), (2) REMIC II will continue
to qualify as a REMIC within the meaning of the REMIC Provisions, and the REMIC
II Regular Interests will continue to evidence "regular interests" and the Class
R-II Certificates will continue to evidence the sole class of "residual
interests" in REMIC II (as both such terms are defined in the REMIC Provisions
in effect on the date hereof), (3) REMIC III will continue to qualify as a REMIC
within the meaning of the REMIC Provisions, and the REMIC III Regular Interests
will continue to evidence "regular interests" and the Class R-III Certificates
will continue to evidence the sole class of "residual interests" in REMIC III
(as both such terms are defined in the REMIC Provisions in effect on the date
hereof), and (4) from and after the Transition Date, REMIC IV will qualify as a
REMIC within the meaning of the REMIC Provisions, and the Class A-1, Class A-2,
Class B, Class C, Class D, Class E, Class F, Class G and Class H Certificates,
each of the Components of the Class IO-1 Certificates and the Class IO-2
Component of the Class IO-2 Certificates will evidence "regular interests" and
the Class R-IV Certificates will evidence the sole class of "residual interests"
in REMIC IV (as both such terms are defined in the REMIC Provisions in effect on
the date hereof).
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person is entitled to rely hereon. Copies of this opinion
letter may not be furnished to any other person, nor may any portion of this
opinion letter be quoted, circulated or referred to in any other document.
Very truly yours,
/s/ WILLKIE FARR & GALLAGHER
-----------------------------
-3-
<PAGE>
Schedule A
----------
First Union National Bank
First Union Capital Markets,
a division of Wheat First Securities, Inc.
Morgan Stanley & Co. Incorporated
Norwest Bank Minnesota, National Association
Moody's Investors Service, Inc.
Standard & Poor's Ratings Services
-4-
