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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported) May 26, 2000
First Union Commercial Mortgage Securities, Inc.
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(Exact Name of Registrant as Specified in its Charter)
North Carolina
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(State or Other Jurisdiction of Incorporation)
333-62671
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(Commission File Number)
56-1643598
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(I.R.S. Employer Identification No.)
One First Union Center, Charlotte, North Carolina 28228-0600
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(Address of Principal Executive Offices) (Zip Code)
(704) 374-6161
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(Registrant's Telephone Number, Including Area Code)
Not Applicable
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(Former Name or Former Address, if Changed Since Last Report)
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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. ACQUISITIONS OR DISPOSITION OF ASSETS
On May 11, 2000, a single series of mortgage pass-through certificates,
entitled First Union National Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2000-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 May 1, 2000, among First Union
Commercial Mortgage Securities, Inc. as depositor (the "Registrant"), First
Union National Bank as master servicer, ORIX Real Estate Capital Markets, LLC as
special servicer and Norwest Bank Minnesota, National Association as trustee.
The Certificates consist of twenty classes (each, a "Class") of Certificates,
eight of which Classes are designated as the "Class A-1 Certificates", the
"Class A-2 Certificates", the "Class IO Certificates", the Class B
Certificates", the "Class C Certificates", the "Class D Certificates", the
"Class E Certificates" and the "Class F Certificates" (collectively, the
"Offered Certificates"); and twelve of which Classes are designated as the
"Class G Certificates", the "Class H Certificates", the "Class J Certificates",
the "Class K Certificates", the "Class L Certificates", the "Class M
Certificates", the "Class N Certificates", the "Class Q 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
143 multifamily and commercial mortgage loans (the "Mortgage Loans") having an
aggregate principal balance as of the Cut-Off Date of approximately
$776,325,806. Each Mortgage Loan is secured by a mortgage lien on a fee or
leasehold interest in an income producing property. Certain of the Mortgage
Loans (the "MLMC Loans") were acquired by the Registrant from Merrill Lynch
Mortgage Capital Inc. ("MLMC") and certain of the Mortgage Loans (the "FUNB
Loans") were acquired by the Registrant from First Union National Bank ("FUNB",
and together with MLMC, the "Sellers") pursuant to two Mortgage Loan Purchase
Agreements, each dated as of May 1, 2000 (the "Purchase Agreements"), between
the Registrant and each of the Sellers. The source of funds for payment of the
purchase prices (collectively the "Purchase Price") for the MLMC Loans and the
FUNB Loans paid by the Registrant to the Sellers was the proceeds derived from
the sale of the Certificates by the Registrant to First Union Securities, Inc.
("First Union Securities") and Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("MLPF") pursuant to an Underwriting Agreement, dated April 28,
2000 (the "Underwriting Agreement"), among the Registrant, FUNB, First Union
Securities, and MLPF (pertaining to the Offered Certificates and a Certificate
Purchase Agreement, dated April 28, 2000, among the Registrant, MLPF and First
Union Securities (pertaining to the Private Certificates (other than the Class
L, Class M, Class N and Class Q Certificates)). The Registrant is a wholly-owned
limited purpose finance subsidiary of FUNB. On May 11, 2000, the Registrant
transferred the Mortgage loans to the Trust Fund pursuant to the Pooling
Agreement. The consideration received by the Registrant in exchange for such
transfer consisted of the Certificates.
The Offered Certificates and the Mortgage Loans are more particularly
described in the Prospectus, dated April 18, 2000, and the Prospectus
Supplement, dated April 28, 2000, 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.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements - Not Applicable.
(b) Pro Forma Financial Information - Not Applicable.
(c) Exhibits.
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1.1 Underwriting Agreement, dated April 28, 2000, among First Union
Commercial Mortgage Securities, Inc., First Union National Bank,
First Union Securities, Inc. and Merrill Lynch, Pierce, Fenner &
Smith Incorporated.
4.1 Pooling and Servicing Agreement, dated as of May 1, 2000, among
First Union Commercial Mortgage Securities, Inc. as depositor,
First Union National Bank as master servicer, ORIX Real Estate
Capital Markets, LLC as special servicer, and Norwest Bank
Minnesota, National Association as trustee.
99.1 Mortgage Loan Purchase Agreement, dated as of May 1, 2000,
between First Union Commercial Mortgage Securities, Inc. and
Merrill Lynch Mortgage Capital Inc.
99.2 Mortgage Loan Purchase Agreement, dated as of May 1, 2000,
between First Union Commercial Mortgage Securities, Inc. and
First Union National Bank.
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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.
(Registrant)
Dated: May 26, 2000 By: /s/ CRAIG M. LIEBERMAN
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Name: Craig M. Lieberman
Title: Vice President
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INDEX TO EXHIBITS
Exhibit
No. Document Description
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1.1 Underwriting Agreement, dated April 28, 2000, among First Union
Commercial Mortgage Securities, Inc., First Union National Bank,
First Union Securities, Inc. and Merrill Lynch, Pierce, Fenner &
Smith Incorporated.
4.1 Pooling and Servicing Agreement, dated as of May 1, 2000, among
First Union Commercial Mortgage Securities, Inc. as depositor, First
Union National Bank as master servicer, ORIX Real Estate Capital
Markets, LLC as special servicer, and Norwest Bank Minnesota,
National Association as trustee.
99.1 Mortgage Loan Purchase Agreement, dated as of May 1, 2000, between
First Union Commercial Mortgage Securities, Inc. and Merrill Lynch
Mortgage Capital Inc.
99.2 Mortgage Loan Purchase Agreement, dated as of May 1, 2000, between
First Union Commercial Mortgage Securities, Inc. and First Union
National Bank.
Execution
FIRST UNION COMMERCIAL MORTGAGE SECURITIES, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
FUNB SERIES 2000-C1
UNDERWRITING AGREEMENT
Charlotte, North Carolina
April 28, 2000
FIRST UNION SECURITIES, INC.
One First Union Center
Charlotte, North Carolina 28288
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower
World Financial Center
New York, New York 10281
Dear Sirs:
First Union Commercial Mortgage Securities, Inc., a North Carolina
corporation (the "Company"), has issued its Commercial Mortgage Pass-Through
Certificates, FUNB Series 2000-C1 (the "Certificates"), in 20 classes (each, a
"Class") as designated in the Prospectus Supplement (as defined below). The
Company further proposes to sell to First Union Securities, Inc. ("FUS") and
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("MLPF&S") (each an
"Underwriter" and together, the "Underwriters") 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 Certificates will be issued on May 11, 2000 (the
"Closing Date") pursuant to a pooling and servicing agreement (the "Pooling and
Servicing Agreement"), dated as of May 1, 2000, among the Company, First Union
National Bank, as master servicer ("FUNB" or the "Master Servicer"), ORIX Real
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Estate Capital Markets, LLC, as special servicer (the "Special Servicer") and
Norwest Bank Minnesota, National Association, as trustee (the "Trustee"). The
Mortgage Loans will be acquired by the Company from First Union National Bank
and Merrill Lynch Mortgage Capital Inc. (each, a "Mortgage Loan Seller" and
together, the "Mortgage Loan Sellers") on the Closing Date pursuant to two
separate mortgage loan purchase agreements (the "Mortgage Loan Purchase
Agreements"), each dated as of May 1, 2000, between the applicable Mortgage Loan
Seller and the Company. 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. 333-30294) 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 April
28, 2000 (the "Prospectus Supplement") to the prospectus dated April 18, 2000
(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.
333-30294), 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 Closing 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 Closing 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 Closing Date,
(i) the Registration Statement, as amended 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
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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 Closing 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 Closing 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 each
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 each 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 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 Closing Date, the Underwritten Certificates, the Pooling and
Servicing Agreement and the Mortgage Loan Purchase Agreements will conform in
all material respects to the respective descriptions thereof contained in the
Prospectus. As of the Closing 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) [Reserved]
(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
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Mortgage Loan Purchase Agreements. 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
Agreements 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 Agreements or the Underwritten
Certificates or (iv) seeking to affect adversely the federal income tax
attributes of the Underwritten Certificates as 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 Closing 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 Closing Date.
(n) 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").
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(o) 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 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.
(p) At the Closing 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").
(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
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,
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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 Closing 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 in the Prospectus Supplement or
ABS Term Sheets 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 Sellers
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).
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 Closing
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 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 Closing 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
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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 Closing 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 Closing Date.
References herein, including, without limitation, in the Schedules hereto,
to actions taken or to be taken following the Closing 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 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).
(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
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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 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 Collateral 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 Collateral
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) 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 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 Closing 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
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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 or other applicable laws or regulations.
(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 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 Closing 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 Closing 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
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<PAGE>
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.
(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) To the extent that the Pooling and Servicing Agreement provides that
the Underwriters are to receive any notices or reports, or have any other rights
thereunder, the Company will enforce the rights of the Underwriters under the
Pooling and Servicing Agreement 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.
(i) The Company shall take all reasonable action necessary to enable the
Rating Agencies to provide their respective credit ratings of the Certificates
as described in the Prospectus.
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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 Closing Date, as of the date the Prospectus Supplement or any
supplement thereto is filed with the Commission and as of the Closing 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 Willkie Farr & Gallagher, 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 Closing 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 Closing
Date with the same effect as if made on the Closing 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 Closing Date; and FUNB shall have delivered to you a
certificate of FUNB, signed by an authorized officer of FUNB and dated the
Closing 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
Closing Date;
(d) You shall have received (i) with respect to the Company, a certificate
of the Office of the Comptroller of the Currency and (ii) with respect to FUNB a
good standing certificate from the Secretary of State of the State of North
Carolina, each dated not earlier than 30 days prior to the Closing 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 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; 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 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 Closing 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 Closing Date, to the
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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 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; and (y) no event (including,
without limitation, any act or omission on the part of FUNB) has occurred since
the date of the certificate referred to in paragraph 6(d) above which has
affected the existence 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 and by-laws of FUNB, as in effect on the Closing 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 Mayer, Brown & Platt, special counsel for
the Company, 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 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
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) Assuming this Agreement has been duly authorized, executed and
delivered by the Company and FUNB, it constitutes a valid, legal, binding
and enforceable agreement of each of the Company and FUNB, 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;
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(iv) [Reserved]
(v) 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;
(vi) 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 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; (vii) 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;
(viii) [Reserved]
(ix) 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.
(x) 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,
the Class Q Certificates will be "regular interests" in REMIC I and the
Class A-1, Class A-2, Class IO, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J, Class K, Class L, Class M and Class N
Certificates will be the "regular interests" in REMIC IV; and
(xi) 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 such counsel, rely
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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 Closing Date, on any
opinion or opinions of such counsel submitted to any Rating Agency as if
addressed to the Underwriters and dated the Closing Date;
(g) You shall have received from Timothy F. Danello, 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) 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;
(vi) This Agreement has been duly authorized, executed and delivered
by each of the Company and FUNB.
(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.
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<PAGE>
(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 KPMG LLP, certified public accountants, a
letter dated the Closing 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 Sellers, unless non-material deviations are otherwise noted
in such letter; and
(2) they have compared the data contained in the data sheet or
computer 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
Closing 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 Closing 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 Kennedy, Covington, Lobdell & Hickman,
counsel for the Trustee, written confirmation that the Underwriters may rely on
the opinion of such counsel delivered on
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<PAGE>
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
Closing Date, to the effect that the information relating to the Master Servicer
under the heading "Servicing of the Mortgage Loans - The Master Servicer" in the
Prospectus Supplement, is true and correct in all material respects;
(o) You shall have received from Thacher Proffitt & Wood, 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
Closing Date, to the effect that the information relating to the Special
Servicer under the heading "Servicing of the Mortgage Loans- The Special
Servicer" in the Prospectus Supplement, is true and correct in all material
respects;
(r) You shall have received from Akin, Gump, Strauss, Hauer & Feld, L.L.P.,
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 Timothy F. Danello, counsel for FUNB as
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 Mayer, Brown & Platt, 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 Mayer, Brown & Platt, 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 Timothy F. Danello, 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
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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 Closing 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
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; (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; or (3) any violation of Section 5 of the 1933 Act
17
<PAGE>
occurring on or prior to the Closing Date in connection with the offer and
sale of the Underwritten Certificates; and
(ii) against any and all loss, liability, claim, damage and expense
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, or any such violation, 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),
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, or any such violation 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 such 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 as
follows:
(i) against any and all loss, liability, claim, damage and expense
described in the indemnity contained in clauses (a)(i)(1) and (a)(i)(2) of
this Section (including subsections (a)(ii) and (a)(iii) as they relate to
such clauses), 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 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
18
<PAGE>
Computational Materials were prepared by such Underwriter and distributed
by such Underwriter; and
(ii)(a) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any violation of Section 5 of the
1933 Act occurring on or prior to the Closing Date in connection with the
offer and sale of the Underwritten Certificates; (b) against any and all
loss, liability, claim, damage and expense 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 violation, if
such settlement is effected with the written consent of each Underwriter;
and (c) against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by the Company), 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
violation to the extent that any such expense is not paid under clauses (a)
or (b) of this paragraph.
It is hereby acknowledged that (i) the statements set forth in the first and
third sentences of the second to last paragraph on the cover of the Prospectus
Supplement, (ii) the statements in the second paragraph and the first sentence
of the fourth paragraph 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
19
<PAGE>
party in connection with all matters relating to the proceeding 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) With respect to the indemnity agreements provided for in Section
8(a)(i)(3) (including Sections 8(a)(ii) and 8(a)(iii) to the extent applicable)
and Section 8(b)(ii), the indemnifying parties shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreements, as incurred, in the proportion determined solely and
exclusively by an arbitrator (as described below), such that, if the arbitrator
or arbitration makes a final determination that both Underwriters or their
affiliates are responsible for any liability arising under said indemnity
agreements, then the aggregate amount contributed by each Underwriter and its
affiliates shall be in the same proportion as the amount of Underwritten
Certificates purchased by such Underwriter pursuant to this Agreement; and if
the arbitrator or arbitration makes a final determination that only one of the
Underwriters or its affiliates is solely responsible for any liability arising
under said indemnity agreements, then such Underwriter and its affiliates shall
be responsible for the entire amount of such liability.
The parties agree that, notwithstanding the determination of any
governmental court or body in favor of, or the terms of any settlement agreement
with, one or more investors, determination of the responsibility of the
indemnifying parties described in the preceding paragraph shall be submitted to
final and binding arbitration before JAMS, or its successor. Any of the parties
may commence the arbitration process called for hereby after a determination of
a Section 5 violation by either of the Underwriters by filing a written demand
for arbitration with JAMS, with a copy to the other parties. The arbitration
will be conducted in accordance with the provisions of JAMS Comprehensive
Arbitration Rules and Procedures in effect at the time of filing of the demand
for arbitration. The parties will cooperate with JAMS and with one another in
selecting an arbitrator from JAMS panel of neutrals, and in scheduling the
arbitration proceedings. If the parties fail to select an arbitrator within 30
business days, then an arbitrator will be appointed by two members of JAMS panel
of neutrals, one of whom will be chosen by FUS and the other by MLPF&S. The
parties covenant that they shall participate in the arbitration in good faith.
The provisions of this paragraph may be enforced by any court of competent
jurisdiction, and all costs, fees and expenses, including attorneys fees
incurred in connection with the proceeding shall be allocated among the
Underwriters in accordance with the preceding paragraph of this Section 8(d).
The parties expressly, unconditionally and irrevocably waive any right to
rescission, repudiation or any similar remedy in regards to any arbitration
hereunder.
In the event that a final determination is made by a court or other
governmental body that none of the indemnifying parties have any liability to
any third party, of the type contemplated by Section 8(a)(i)(3) (including
Sections 8(a)(ii) and 8(a)(iii) to the extent applicable) or Section 8(b)(ii),
then FUS, FUNB and the Company, on the one hand, and MLPF&S, on the other hand,
shall contribute equally to the aggregate costs and expenses incurred by the
indemnifying parties in connection with proceedings before such court or
governmental body.
(e) 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
20
<PAGE>
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 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
21
<PAGE>
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 Closing 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 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 Closing 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 or of FUNB
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 in any securities of the Company or of FUNB has been suspended or
limited by the Commission or the New York Stock Exchange, or if trading
generally on the American Stock Exchange or the New York Stock Exchange or on
the Nasdaq National Market has been suspended or limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) 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.
22
<PAGE>
Notices to the Underwriters shall be directed to One First Union Center,
Charlotte, North Carolina 28288-0166, Attention: R. Owen Williams and to Merrill
Lynch, Pierce, Fenner & Smith Incorporated, North Tower, World Financial Center,
New York, New York 10281, Attention: Real Estate Investment Banking; 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
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.
23
<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:____________________________________
Name: ________________________________
Title: ________________________________
24
<PAGE>
FIRST UNION NATIONAL BANK
By:_____________________________
Name: Craig Lieberman
Title: Vice President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
FIRST UNION SECURITIES, INC.
By:_____________________________
Name:___________________________
Title: _________________________
25
<PAGE>
MERRILL LYNCH, PIERCE FENNER & SMITH INCORPORATED
By:_________________________________
Name:_______________________________
Title:______________________________
26
<PAGE>
SCHEDULE I
Underwriting Agreement dated April 28, 2000:
As used in this Schedule I, the term "Registration Statement" refers to
registration statement No. 333-30294 filed by the Company on Form S-3 and
declared effective on March 9, 2000. 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 April 28, 2000 to the Basic Prospectus, relating to the mortgage
pass-through certificates being sold pursuant to the Underwriting Agreement (the
"Underwritten Certificates").
Mortgage Pool:
One hundred and forty-three commercial and multifamily mortgage loans,
having an aggregate principal balance, after giving effect to payments of
principal due on or before May 1, 2000 (the "Cut-Off Date") of $776,325,806
(which amount does not include a subordinate interest (having a principal
balance as of the Cut-Off Date of approximately $2,127,760) in certain of the
mortgage loans, as described in the Prospectus Supplement , 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 2000-C1, Class A-1, Class A-2, Class B, Class C, Class
D, Class E, Class F and Class IO.
<PAGE>
<TABLE>
<CAPTION>
Closing Date
Aggregate Pass Purchase
Certificate -Through Price
Designation Principal Balance Rate Rating (1) Percentage (2)
- ----------- ----------------- -------- ----------- -------------
<S> <C> <C> <C> <C>
Class A-1 $ 95,500,000 7.739% AAA/AAA 100.4982%
Class A-2 $480,921,000 7.841% AAA/AAA 100.4953%
Class IO $776,325,806 (3) AAAr/AAA 4.0237%
Class B $ 38,817,000 7.973%(4) AA/AA 100.4989%
Class C $ 34,934,000 8.087%(4) A/A 100.4952%
Class D $ 11,645,000 8.185%(4) A-/A- 100.4967%
Class E $ 25,231,000 (5) BBB/BBB 98.9275%
Class F $ 11,645,000 (5) BBB-/BBB- 95.7951%
</TABLE>
____________________
(1) By each of Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. and Fitch IBCA Inc.
(2) There shall be added to the purchase price for each Class of Underwritten
Certificates accrued interest, if any, at the initial Pass-Through Rate for
such Class from April 1, 2000, up to, but not including, the Closing Date.
(3) The Class IO Certificates will be entitled to receive the aggregate
interest accrued on the notional amount of the components of the Class IO
Certificates.
(4) The pass-through rate applicable to the Class B, Class C and Class D
Certificates on each Distribution Date will equal the lesser of the rate
set forth in the table and the weighted average net mortgage rate of the
Mortgage Loans.
(5) The pass-through rate applicable to the Class E and Class F Certificates
will equal the weighted average net mortgage rate of the Mortgage Loans.
Credit Support and Other Terms and Conditions of the Underwritten Certificates:
As described in the Prospectus Supplement.
Closing Date and Location: 10:00 a.m. (New York City time) on May 11, 2000 at
the offices of Mayer, Brown & Platt, Charlotte, North Carolina; except that
delivery of the Underwritten Certificates shall be made through the facilities
of The Depository Trust Company.
-2-
<PAGE>
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.
-3-
<PAGE>
SCHEDULE II
Underwriting Agreement dated April 28, 2000
Approximate Aggregate Principal or Notional Amount of Certificates to
Underwriters Class to be Purchased by First Union Securities, Inc.
Class A-1 $ 73,653,923
Class A-2 $370,908,044
Class IO $598,737,602
Class B $ 29,937,427
Class C $ 26,942,682
Class D $ 8,981,151
Class E $ 19,459,289
Class F $ 8,981,151
Merrill Lynch, Pierce Fenner & Smith Incorporated
Class A-1 $ 21,846,077
Class A-2 $110,012,956
Class IO $177,508,204
Class B $ 8,879,573
Class C $ 7,991,318
Class D $ 2,663,849
Class E $ 5,771,711
Class F $2,663,849
-4-
================================================================================
FIRST UNION COMMERCIAL MORTGAGE SECURITIES, INC.
Depositor
and
FIRST UNION NATIONAL BANK
Master Servicer
and
ORIX REAL ESTATE CAPITAL MARKETS, LLC
Special Servicer
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of May 1, 2000
------------------------------
$778,453,566
Commercial Mortgage Pass-Through Certificates
Series 2000-C1
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
Page
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ARTICLE I
DEFINITIONS
<S> <C>
SECTION 1.01. Defined Terms..........................................................................3
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans..........................................................63
SECTION 2.02. Acceptance of the Trust Fund by Trustee...............................................65
SECTION 2.03. Mortgage Loan Seller's Repurchase or Substitution of Mortgage
Loans for Document Defects and Breaches of Representations
and Warranties........................................................................66
SECTION 2.04. Representations and Warranties of Depositor...........................................70
SECTION 2.05. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests...................................72
SECTION 2.06. Conveyance of REMIC I Senior Regular Interests; Acceptance
of REMIC II by Trustee................................................................72
SECTION 2.07. Execution, Authentication and Delivery of Class R-II
Certificates..........................................................................72
SECTION 2.08. Conveyance of REMIC III Regular Interests; Acceptance of
REMIC III by Trustee..................................................................72
SECTION 2.09. Execution, Authentication and Delivery of Class R-III
Certificates..........................................................................73
SECTION 2.10. Conveyance of REMIC III Regular Interests; Acceptance of
REMIC IV by Trustee...................................................................73
SECTION 2.11. Execution, Authentication and Delivery of REMIC IV
Certificates..........................................................................73
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans..................................................73
SECTION 3.02. Collection of Mortgage Loan Payments..................................................74
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts............................................................76
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
SECTION 3.04. Certificate Account, Interest Reserve Account and Distribution
Account...............................................................................80
SECTION 3.05. Permitted Withdrawals From the Certificate Account, Interest
Reserve Account and the Distribution Account..........................................83
SECTION 3.06. Investment of Funds in the Servicing Accounts, the Reserve
Accounts, the Certificate Account, the Distribution Account
and the REO Account...................................................................87
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage.....................................................................89
SECTION 3.08. Enforcement of Alienation Clauses.....................................................91
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required
Appraisals............................................................................92
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage
Files.................................................................................96
SECTION 3.11. Servicing Compensation................................................................97
SECTION 3.12. Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports..........................................................100
SECTION 3.13. Annual Statement as to Compliance....................................................103
SECTION 3.14. Reports by Independent Public Accountants............................................104
SECTION 3.15. Access to Certain Information........................................................104
SECTION 3.16. Title to REO Property; REO Account...................................................107
SECTION 3.17. Management of REO Property...........................................................108
SECTION 3.18. Sale of Mortgage Loans and REO Properties............................................111
SECTION 3.19. Additional Obligations of Master Servicer and Special
Servicer.............................................................................114
SECTION 3.20. Modifications, Waivers, Amendments and Consents......................................115
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping.............................................................121
SECTION 3.22. Sub-Servicing Agreements.............................................................124
SECTION 3.23. Representations and Warranties of Master Servicer and Special
Servicer.............................................................................127
SECTION 3.24. Sub-Servicing Agreement Representation and Warranty..................................131
SECTION 3.25. Designation of Controlling Class Representative......................................131
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDER
SECTION 4.01. Distributions........................................................................133
SECTION 4.02. Statements to Certificateholders; CMSA Loan File Report..............................145
SECTION 4.03. P&I Advances.........................................................................151
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund
Expenses; Allocation of Certificate Deferred Interest................................154
SECTION 4.05. Calculations.........................................................................156
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
SECTION 4.06. Use of Agents........................................................................156
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.....................................................................157
SECTION 5.02. Registration of Transfer and Exchange of Certificates................................157
SECTION 5.03. Book-Entry Certificates..............................................................163
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates....................................164
SECTION 5.05. Persons Deemed Owners................................................................165
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.........................165
SECTION 6.02. Merger, Consolidation or Conversion of Depositor or Master
Servicer or Special Servicer.........................................................165
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer and
Special Servicer.....................................................................166
SECTION 6.04. Resignation of Master Servicer and the Special Servicer..............................167
SECTION 6.05. Rights of Depositor and Trustee in Respect of Master Servicer
and the Special Servicer.............................................................168
SECTION 6.06. Depositor, Master Servicer and Special Servicer to Cooperate
with Trustee.........................................................................168
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate with
Master Servicer......................................................................168
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with
Special Servicer.....................................................................168
SECTION 6.09. Designation of Special Servicer by the Controlling Class.............................169
SECTION 6.10. Master Servicer or Special Servicer as Owner of a Certificate
....................................................................................170
SECTION 6.11. The Controlling Class Representative.................................................171
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default....................................................................173
SECTION 7.02. Trustee to Act; Appointment of Successor.............................................178
SECTION 7.03. Notification to Certificateholders...................................................179
SECTION 7.04. Waiver of Events of Default..........................................................180
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.................................180
</TABLE>
iii
<PAGE>
<TABLE>
ARTICLE VIII
CONCERNING THE TRUSTEE
<S> <C>
SECTION 8.01. Duties of Trustee....................................................................181
SECTION 8.02. Certain Matters Affecting Trustee....................................................182
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of Certificates or
Mortgage Loans.......................................................................184
SECTION 8.04. Trustee May Own Certificates.........................................................184
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of Trustee.............................184
SECTION 8.06. Eligibility Requirements for Trustee.................................................185
SECTION 8.07. Resignation and Removal of Trustee...................................................186
SECTION 8.08. Successor Trustee....................................................................187
SECTION 8.09. Merger or Consolidation of Trustee...................................................187
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee........................................188
SECTION 8.11. Appointment of Custodians............................................................189
SECTION 8.12. Appointment of Authenticating Agents.................................................189
SECTION 8.13. Appointment of Paying Agent..........................................................190
SECTION 8.14. Appointment of REMIC Administrators..................................................191
SECTION 8.15. Access to Certain Information........................................................192
SECTION 8.16. Representations, Warranties and Covenants of Trustee.................................192
SECTION 8.17. Reports to the Securities and Exchange Commission; Available
Information..........................................................................194
SECTION 8.18. Maintenance of Mortgage File.........................................................194
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage
Loans................................................................................195
SECTION 9.02. Additional Termination Requirements..................................................197
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration.................................................................198
SECTION 10.02. Grantor Trust Administration.........................................................202
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment............................................................................204
SECTION 11.02. Recordation of Agreement; Counterparts...............................................206
SECTION 11.03. Limitation on Rights of Certificateholders...........................................207
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C>
SECTION 11.04. Governing Law........................................................................207
SECTION 11.05. Notices..............................................................................208
SECTION 11.06. Severability of Provisions...........................................................208
SECTION 11.07. Grant of a Security Interest.........................................................209
SECTION 11.08. Streit Act...........................................................................209
SECTION 11.09. Successors and Assigns; Beneficiaries................................................209
SECTION 11.10. Article and Section Headings.........................................................209
SECTION 11.11. Notices to Rating Agencies...........................................................210
SECTION 11.12. Complete Agreement...................................................................211
</TABLE>
v
<PAGE>
<TABLE>
EXHIBITS
<CAPTION>
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]
Form of Class IO Certificate A-4 Section 1.01 Definition of
"Class IO 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 F Certificate A-9 Section 1.01 Definition of
"Class F Certificate"
Form of Class G Certificate A-10 Section 1.01 Definition of
"Class G Certificate"
Form of Class H Certificate A-11 Section 1.01 Definition of
"Class H Certificate"
Form of Class J Certificate A-12 Section 1.01 Definition of
"Class J Certificate"
Form of Class K Certificate A-13 Section 1.01 Definition of
"Class K Certificate"
</TABLE>
vi
<PAGE>
<TABLE>
<S> <C> <C>
Form of Class L Certificate A-14 Section 1.01 Definition of
"Class L Certificate"
Form of Class M Certificate A-15 Section 1.01 Definition of
"Class M Certificate"
Form of Class N Certificate A-16 Section 1.01 Definition of
"Class N Certificate"
Form of Class Q Certificate A-17 Section 1.01 Definition of
"Class Q Certificate"
Form of Class R-I Certificate A-18 Section 1.01 Definition of
"Class R-I Certificate"
Form of Class R-II Certificate A-19 Section 1.01 Definition of
"Class R-II Certificate"
Form of Class R-III Certificate A-20 Section 1.01 Definition of
"Class R-III Certificate"
Form of Class R-IV Certificate A-21 Section 1.01 Definition of
"Class R-IV Certificate"
Mortgage Loan Schedule B Section 1.01 Definition of
"Mortgage Loan Schedule"
Schedule of Exceptions to C-1 Section 2.02(a)
Mortgage File Delivery
Form of Custodial Certification C-2 Section 2.02(a)
Form of Master Servicer Request D-1 Section 1.01 Definition of
for Release "Request for Release";
Section 2.03(b); Section
3.10(a); and Section 3.10(b)
Form of Special Servicer Request D-2 Section 1.01 Definition of
for Release "Request for Release"
Section 3.10(b)
</TABLE>
vii
<PAGE>
<TABLE>
<S> <C> <C>
Calculation of NOI/Debt Service E Section 1.01 Definition of
Coverage Ratios "Net Operating Income"
[RESERVED] F
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 by Prospective H Section 5.02(c)(i) and (ii)
Transferee
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 and R-III
Certificates
Form of Notice and J-1 Section 6.09
Acknowledgment
Form of Acknowledgment of J-2 Section 6.09
Proposed Special Servicer
[RESERVED] K
[RESERVED] L
Form of CMSA Property File M Section 3.12(c)
Report
</TABLE>
viii
<PAGE>
<TABLE>
<S> <C> <C>
Form of Comparative Financial N Section 3.12(b) and 3.12(c)
Status 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 Q Section 3.12(b) and 3.12(c)
Report
Form of Historical Loan R Section 3.12(b) and 3.12(c)
Modification Report
Form of Historical Liquidation S Section 3.12(b) and 3.12(c)
Report
Form of NOI Adjustment T Section 3.12(b) and 3.12(c)
Worksheet
Form of Operating Statement U Section 3.12(b) and 3.12(c)
Analysis
Form of Interim Delinquent Loan V Section 3.12(c)
Status Report
Form of CMSA 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
Form of CMSA Bond File Report Y Section 3.15
Form of CMSA Collateral File Z Section 3.15
Report
</TABLE>
ix
<PAGE>
This Pooling and Servicing Agreement (this "Agreement") is
dated and effective as of May 1, 2000, among FIRST UNION COMMERCIAL MORTGAGE
SECURITIES, INC., as Depositor, FIRST UNION NATIONAL BANK, as Master Servicer,
ORIX REAL ESTATE CAPITAL MARKETS, LLC, 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, the primary assets of which will be the Mortgage Loans.
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the Heilig/Petsmart 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. The REMIC I Senior Regular Interest will have: (i) subject to
adjustment as provided herein, a REMIC I Remittance Rate equal to the Weighted
Average REMIC I Remittance Rate; and (ii) an initial REMIC Principal Balance
equal to the Heilig/Petsmart Senior Balance as of the Closing Date. Except as
provided below, the REMIC I Subordinate Regular Interest will have: (i) subject
to adjustment as provided herein, a REMIC I Remittance Rate equal to the
Weighted Average REMIC I Remittance Rate; and (ii) an initial REMIC Principal
Balance equal to the Heilig/Petsmart Subordinate Balance as of the Closing Date.
The REMIC I Senior Regular Interest will not be certificated. The REMIC I
Subordinate Regular Interest will be represented by the Class Q Certificates.
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of the REMIC I Senior Regular Interest and
all of the Majority Mortgage Loans (exclusive of that portion of the interest
payments thereon that constitute Additional Interest) 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 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. Except as
provided below, each REMIC II Regular Interest will relate to a specific
Majority Mortgage Loan or the REMIC I Senior Regular Interest. Each such REMIC
II Regular Interest will have: (i) subject to adjustment as provided herein, a
REMIC II Remittance Rate equal to the Net Mortgage Rate of the Majority Mortgage
Loan to which such REMIC II Regular Interest relates or to the REMIC I
Remittance Rate of the REMIC I Senior Regular Interest to which such REMIC II
Regular Interest relates; and (ii) an initial REMIC Principal Balance equal to
the Cutoff Date Balance of the Majority Mortgage Loan to which such REMIC II
Regular Interest relates or to the initial REMIC Principal Balance of the REMIC
I Senior Regular Interest to which such REMIC II Regular Interest relates. None
of the REMIC II Regular Interests will be certificated.
<PAGE>
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of all 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 represent the
sole class of "residual interests" in REMIC III for purposes of the REMIC
Provisions under federal income tax law. Each of the fourteen REMIC III Regular
Interests will be designated as a separate "regular interest" in REMIC III for
purposes of the REMIC Provisions under federal income tax law and will have a
REMIC III Remittance Rate equal to the Weighted Average REMIC II Remittance
Rate. The initial REMIC Principal Balance of each such REMIC III Regular
Interest is equal to the Original Class Principal Balance of the Corresponding
Class of Regular Certificates as set forth in the Table below. None of the REMIC
III Regular Interests will be certificated.
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of all of the 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, each
Class of the Regular Certificates (other than the Class IO Certificates) and
each of the Components of the Class IO Certificates will be designated as a
separate "regular interest" in REMIC IV for purposes of the REMIC Provisions
under federal income tax law.
The following table sets forth the Class designation, the
corresponding REMIC III Regular Interest (the "Corresponding REMIC III Regular
Interest"), the corresponding Component of the Class IO Certificates (the
"Corresponding Component") and the Original Class Principal Balance for each
Class of the Regular Certificates (other than the Class IO Certificates).
<TABLE>
<CAPTION>
Corresponding
Corresponding Component of
Class REMIC III Class IO Original Class
Designation Regular Interest (1) Certificates (1) Principal Balance
<S> <C> <C> <C>
Class A-1 M IO-A-1 $95,500,000
Class A-2 N IO-A-2 $480,921,000
Class B O IO-B $38,817,000
Class C P IO-C $34,934,000
Class D Q IO-D $11,645,000
Class E R IO-E $25,231,000
Class F S IO-F $11,645,000
Class G T IO-G $29,112,000
Class H U IO-H $7,763,000
Class J V IO-J $3,882,000
Class K W IO-K $7,763,000
Class L X IO-L $5,823,000
Class M Y IO-M $8,733,000
Class N Z IO-N $14,556,806
</TABLE>
2
<PAGE>
(1) The REMIC III Regular Interest and the Component of the Class IO
Certificates that correspond to any particular Class of Sequential Pay
Certificates also correspond to each other and, accordingly, constitute the
"Corresponding REMIC III Regular Interest" and the "Corresponding
Component", respectively, with respect to each other.
As provided herein, the Trustee shall take all actions
necessary to ensure that the portion of the Trust Fund consisting of the Grantor
Trust Assets maintains its status as a "grantor trust" under federal income tax
law and not be treated as part of REMIC I, REMIC II, REMIC III or REMIC IV.
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.
"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 any Class of
Regular Certificates (other than the Class IO Certificates) or the Class Q
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 for the related Interest Accrual Period on the related Class Principal
Balance outstanding immediately prior to such Distribution Date; and, with
respect to the Class IO Certificates for any Distribution Date, the sum of the
Accrued Component Interest for the related Interest Accrual Period for all of
its Components for such Distribution Date. Accrued Certificate Interest shall be
calculated on a 30/360 Basis and, with respect to any Class of Regular
Certificates or the Class Q Certificates for any Distribution Date, shall be
deemed to accrue during the calendar month preceding the month in which such
Distribution Date occurs.
3
<PAGE>
"Accrued Component Interest": With respect to each Component
of the Class IO Certificates 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 of the Class IO
Certificates for any Distribution Date, shall be deemed to accrue during the
calendar month preceding the month in which such Distribution Date occurs.
"Accrued Heilig/Petsmart Senior Component Interest": With
respect to the Heilig/Petsmart Senior Component for any Distribution Date, one
month's interest at the Weighted Average REMIC I Remittance Rate for such
Distribution Date, accrued for the related Interest Accrual Period on the
Heilig/Petsmart Senior Balance outstanding immediately prior to such
Distribution Date. Accrued Heilig/Petsmart Senior Component Interest shall be
calculated on a 30/360 Basis and, 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.
"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.
"Additional Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal balance of
such ARD Loan at the Additional Interest Rate (the payment of which interest
shall, under the terms of such Mortgage Loan, be deferred until the entire
outstanding principal balance of such ARD Loan has been paid), together with all
interest, if any, accrued at the related Mortgage Rate on such deferred
interest. For purposes of this Agreement, Additional Interest on an ARD Loan or
any successor REO Loan shall be deemed not to constitute principal or any
portion thereof and shall not be added to the unpaid principal balance or Stated
Principal Balance of such ARD Loan or successor REO Loan, notwithstanding that
the terms of the related Mortgage Loan documents so permit. To the extent that
any Additional Interest is not paid on a current basis, it shall be deemed to be
deferred interest.
"Additional Interest Rate": With respect to any ARD Loan after
its Anticipated Repayment Date, the incremental increase in the per annum rate
at which such Mortgage Loan
4
<PAGE>
accrues interest after the Anticipated Repayment Date (in the absence of
defaults) as calculated and as set forth in the related Mortgage Loan documents.
"Additional Trust Fund Expense": Any Special Servicing Fees,
Workout Fees, Principal Recovery Fees and, in accordance with Sections 3.03(d)
and 4.03(d), interest payable to the Master Servicer and the Trustee on Advances
(to the extent not offset by Penalty Interest and late payment charges) and
amounts payable to the Special Servicer in connection with inspections of
Mortgaged Properties required pursuant to the first sentence of Section 3.12(a),
to the extent such inspection-related expenses are not otherwise offset by
Penalty Interest and late payment charges otherwise payable to the Special
Servicer and received in the Collection Period during which such
inspection-related expenses were incurred, 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 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 Yield Maintenance Charge was
actually collected on a Mortgage Loan or an REO Loan during the related
Collection Period, the product of (a) such Yield Maintenance Charge (or, with
respect to any Yield Maintenance Charge actually collected on a Heilig/Petsmart
Mortgage Loan, the amount of such Yield Maintenance Charge allocated to the
Heilig/Petsmart Senior Component pursuant to Section 4.01(b), 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
5
<PAGE>
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.
"Anticipated Repayment Date": For each ARD Loan, the date
specified in the related Mortgage Note after which the Mortgage Rate for such
ARD Loan will increase as specified in the related Mortgage Note.
"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 American
Appraisal Institute by an Independent Appraiser, which Independent Appraiser
shall be advised to take into account the factors specified in Section 3.18(e),
any available environmental, engineering or other third-party reports, and other
factors that a prudent real estate appraiser would consider.
"Appraisal Reduction Amount": The excess, if any, of (a) the
sum of, as calculated by the Master Servicer as of the first Determination Date
immediately succeeding the Master Servicer obtaining knowledge of the occurrence
of the Required Appraisal Date if no new Required Appraisal is required or the
date on which a Required Appraisal (or letter update or internal valuation, if
applicable) is obtained and each Determination Date thereafter so long as the
related Mortgage Loan remains a Required Appraisal Mortgage Loan (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 to the related Net Mortgage Rate (exclusive of any
portion thereof that constitutes Additional Interest), (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 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 and
assessments, insurance premiums, and, if applicable, ground rents in respect of
the related Mortgaged Property over (b) an amount equal to the sum of (i) the
Required Appraisal Value and (ii) all escrows and reserves held with respect to
such Required Appraisal Mortgage Loan. If the Special Servicer fails to obtain a
Required Appraisal within the time limit described in Section 3.09(a), the
Appraisal Reduction Amount for the related Required Appraisal Mortgage Loan will
equal 25% of the outstanding principal balance of such Required Appraisal
Mortgage Loan, to be adjusted upon receipt of a Required Appraisal (or letter
update or internal valuation, if applicable).
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"Appraised Value": With respect to each Mortgaged Property,
the appraised value thereof based upon the most recent Appraisal (or letter
update or internal valuation, if applicable) or update thereof that is contained
in the related Servicing File.
"ARD Loan": Any Majority Mortgage Loan that provides that if
the unamortized principal balance thereof is not repaid on its Anticipated
Repayment Date, such Majority Mortgage Loan will accrue Additional Interest at
the rate specified in the related Mortgage Note and the Mortgagor is required to
apply excess monthly cash flow generated by the related Mortgaged Property to
the repayment of the outstanding principal balance on such Majority Mortgage
Loan.
"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 Periodic Payment of principal and/or interest deemed to be due
in respect thereof on such Due Date that would have been due in respect of such
Mortgage Loan on such Due Date if the related Mortgagor 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 Periodic Payment of principal and/or
interest deemed to be due in respect thereof on such Due Date 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, the sum of (I) with respect to all of the Majority Mortgage
Loans, 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 the
Certificate Account, (ii) the aggregate amount of any P&I
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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 the (A) Certificate Account pursuant to clauses (ii)-(xiv) and
(xvii) 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) Additional Interest, (v) 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 (vi) any amounts deposited
in the Certificate Account or the Distribution Account in error, and (II) with
respect to the Heilig/Petsmart Mortgage Loans, all amounts distributed pursuant
to Section 4.01(k)(i), (ii) and (iii).
"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 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
the transfer of servicing), multiplied by a fraction equal to (a) the Servicer
Fee Amount for the Master Servicer or such Sub-Servicer, as the case may be, as
of such date of determination, over (b) the aggregate of the Servicer Fee
Amounts for the Master Servicer and all of the Sub-Servicers as of such date of
determination.
"Book-Entry Certificate": Any Certificate registered in the
name of the Depository or its nominee.
"Breach": As defined in Section 2.03(a).
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"Business Day": Any day other than a Saturday, a Sunday or a
day on which banking institutions in New York, New York, 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.
"Business Hour": Any 60-minute interval between 9:00 a.m. and
5:00 p.m., in the related time zone, on any Business Day.
"CERCLA": The Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate": Any one of the First Union National Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2000-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 National Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2000-C1".
"Certificate Deferred Interest": The amount by which interest
distributable to any Class of Sequential Pay Certificates or the Class Q
Certificates is reduced by the amount of Mortgage Deferred Interest allocable to
such Class on any Distribution Date.
"Certificate Factor": With respect to any Class of Sequential
Pay Certificates or the Class Q 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 or the Class Q Certificates , and the denominator of which is the
Original Class Principal Balance of such Class of Sequential Pay Certificates or
the Class Q Certificates.
"Certificate Notional Amount": With respect to any Class IO
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 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 or the Class Q Certificates , 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, any Mortgage Loan Seller, the Master Servicer, the Special
Servicer, or the Trustee in its respective capacity as such (except with respect
to amendments or waivers referred to in Sections 7.04 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, any 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 their respective 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 evidencing (i) a portion of a "regular
interest" in REMIC IV for purposes of the REMIC Provisions and (ii) the
proportionate interest in the Additional Interest that is described in Section
4.01(b).
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"Class A-2 Certificate": Any one of the Certificates with a
"Class A-2" designation on the face thereof, substantially in the form of
Exhibit A-2 attached hereto, and evidencing (i) a portion of a "regular
interest" in REMIC IV for purposes of the REMIC Provisions and (ii) the
proportionate interest in the Additional Interest that is described in Section
4.01(b).
"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 evidencing (i) a portion of a "regular interest" in
REMIC IV for purposes of the REMIC Provisions and (ii) the proportionate
interest in the Additional Interest that is described in Section 4.01(b).
"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 evidencing (i) a portion of a "regular interest" in
REMIC IV for purposes of the REMIC Provisions and (ii) the proportionate
interest in the Additional Interest that is described in Section 4.01(b).
"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 evidencing (i) a portion of a "regular interest" in
REMIC IV for purposes of the REMIC Provisions and (ii) the proportionate
interest in the Additional Interest that is described in Section 4.01(b).
"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 evidencing (i) a portion of a "regular interest" in
REMIC IV for purposes of the REMIC Provisions and (ii) the proportionate
interest in the Additional Interest that is described in Section 4.01(b).
"Class F Certificate": Any one of the Certificates with a
"Class F" designation on the face thereof, substantially in the form of Exhibit
A-9 attached hereto, and evidencing (i) a portion of a "regular interest" in
REMIC IV for purposes of the REMIC Provisions and (ii) the proportionate
interest in the Additional Interest that is described in Section 4.01(b).
"Class G Certificate": Any one of the Certificates with a
"Class G" designation on the face thereof, substantially in the form of Exhibit
A-10 attached hereto, and evidencing a portion of a "regular interest" in REMIC
IV for purposes of the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a
"Class H" designation on the face thereof, substantially in the form of Exhibit
A-11 attached hereto, and evidencing a portion of a "regular interest" in REMIC
IV for purposes of the REMIC Provisions.
"Class IO Certificate": Any one of the Certificates with a
"Class IO" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing (i) a portion of each of the Components,
each of which Components shall constitute a separate "regular interest"
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in REMIC IV for purposes of the REMIC Provisions and (ii) the proportionate
interest in the Additional Interest that is described in Section 4.01(b).
"Class J Certificate": Any one of the Certificates with a
"Class J" designation on the face thereof, substantially in the form of Exhibit
A-12 attached hereto, and evidencing a portion of a "regular interest" in REMIC
IV for purposes of the REMIC Provisions.
"Class K Certificate": Any one of the Certificates with a
"Class K" designation on the face thereof, substantially in the form of Exhibit
A-13 attached hereto, and evidencing a portion of a "regular interest" in REMIC
IV for purposes of the REMIC Provisions.
"Class L Certificate": Any one of the Certificates with a
"Class L" designation on the face thereof, substantially in the form of Exhibit
A-14 attached hereto, and evidencing a portion of a "regular interest" in REMIC
IV for purposes of the REMIC Provisions.
"Class M Certificate": Any one of the Certificates with a
"Class M" designation on the face thereof, substantially in the form of Exhibit
A-15 attached hereto, and evidencing a portion of a "regular interest" in REMIC
IV for purposes of the REMIC Provisions.
"Class N Certificate": Any one of the Certificates with a
"Class N" designation on the face thereof, substantially in the form of Exhibit
A-16 attached hereto, and evidencing a portion of a "regular interest" in REMIC
IV for purposes of the REMIC Provisions.
"Class Notional Amount": As of any date of determination, the
sum of the then Component Notional Amounts of all of the Components.
"Class Principal Balance": The aggregate principal balance of
any Class of Sequential Pay Certificates or the Class Q Certificates outstanding
from time to time. As of the Closing Date, the Class Principal Balance of each
Class of Sequential Pay Certificates or the Class Q Certificates shall equal the
Original Class 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). The Class
Principal Balance of any Class of Sequential Pay Certificates or the Class Q
Certificates will be increased on any Distribution Date by the amount of any
Certificate Deferred Interest allocated to such Class on such Distribution Date.
Distributions in respect of a reimbursement of Realized Losses and Additional
Trust Fund Expenses previously allocated to a Class of Sequential Pay
Certificates or the Class Q Certificates shall not constitute distributions of
principal and shall not result in reduction of the related Class Principal
Balance.
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"Class Q Certificate": Any one of the Certificates with a
"Class Q" designation on the face thereof, substantially in the form of Exhibit
A-17 attached hereto, and evidencing a portion of a "regular interest" in REMIC
I for purposes of the REMIC Provisions.
"Class R-I Certificate": Any one of the Certificates with a
"Class R-I" designation on the face thereof, substantially in the form of
Exhibit A-18 attached hereto, and evidencing 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-19 attached hereto, and evidencing a portion of the sole class of
"residual interests" in REMIC II for purposes of the REMIC Provisions.
"Class R-III Certificate": Any one of the Certificates with a
"Class R-III" designation on the face thereof, substantially in the form of
Exhibit A-20 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-21 attached hereto, and evidencing a portion of the sole class of
"residual interests" in REMIC IV for purposes of the REMIC Provisions.
"Closing Date": May 11, 2000
"CMSA Bond File Report": The monthly report in the "CMSA Bond
File Report" format substantially containing the information called for therein,
a form of which is attached hereto as Exhibit Y.
"CMSA Collateral File Report": The monthly report in the "CMSA
Collateral File" format substantially containing the information called for
therein, a form of which is attached hereto as Exhibit Z.
"CMSA Loan File Report": The monthly report in the "CMSA Loan
File Report" format substantially containing the information called for therein
for the Mortgage Loans, a form of which is attached hereto as Exhibit W.
"CMSA Property File Report": The monthly report in the "CMSA
property file" format substantially containing the information called for
therein for each Mortgaged Property, a form of which is attached hereto as
Exhibit M.
"Code": The Internal Revenue Code of 1986, as amended.
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"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 related Mortgage Loan Seller.
"Component": Each of Component IO-A-1, Component IO-A-2,
Component IO-B, Component IO-C, Component IO-D, Component IO-E, Component IO-F,
Component IO-G, Component IO-H, Component IO-J, Component IO-K, Component IO-L,
Component IO-M and Component IO-N, each evidencing a separate "regular interest"
in REMIC IV for purposes of the REMIC Provisions. Such Components are
collectively evidenced by the Class IO Certificates.
"Component IO-A-1": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
Principal Balance of REMIC III Regular Interest M as of any date of
determination.
"Component IO-A-2": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
Principal Balance of REMIC III Regular Interest N as of any date of
determination.
"Component IO-B": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
Principal Balance of REMIC III Regular Interest O as of any date of
determination.
"Component IO-C": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
Principal Balance of REMIC III Regular Interest P as of any date of
determination.
"Component IO-D": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
Principal Balance of REMIC III Regular Interest Q as of any date of
determination.
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"Component IO-E": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
Principal Balance of REMIC III Regular Interest R as of any date of
determination.
"Component IO-F": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
Principal Balance of REMIC III Regular Interest S as of any date of
determination.
"Component IO-G": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
Principal Balance of REMIC III Regular Interest T as of any date of
determination.
"Component IO-H": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
Principal Balance of REMIC III Regular Interest U as of any date of
determination.
"Component IO-J": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
Principal Balance of REMIC III Regular Interest V as of any date of
determination.
"Component IO-K": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
Principal Balance of REMIC III Regular Interest W as of any date of
determination.
"Component IO-L": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
Principal Balance of REMIC III Regular Interest X as of any date of
determination.
"Component IO-M": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current REMIC
Principal Balance of REMIC III Regular Interest Y as of any date of
determination.
"Component IO-N": One of the fourteen components of the Class
IO Certificates having a Component Notional Amount equal to the then current
REMIC Principal Balance of REMIC III Regular Interest Z as of any date of
determination.
"Component Notional Amount": With respect to each Component,
as of any date of determination, an amount equal to the then REMIC Principal
Balance of its Corresponding REMIC III Regular Interest.
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"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 (i) greater
than 25% of the Original Class Principal Balance thereof and (ii) equal to or
greater than 1.0% of the sum of the Original Class Principal Balances of all the
Sequential Pay Certificates; provided, however, that if no Class of Sequential
Pay Certificates satisfies clause (b) above, the Controlling Class shall be the
outstanding Class of Certificates (other than the Residual Certificates or the
Class IO Certificates) bearing the latest alphabetical Class designation. With
respect to determining the Controlling Class, the Class A-1 and Class A-2
Certificates shall be deemed a single Class of Certificates.
"Controlling Class Representative": As defined in Section
3.25.
"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
National Bank Commercial Mortgage Trust, Series 2000-C1, and (ii) for all other
purposes, 11000 Broken Land Parkway, Columbia, Maryland 21044-3562, Attn:
Corporate Trust Services (CMBS) -- First Union National Bank Commercial Mortgage
Trust, Series 2000-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 Component": As defined in the Preliminary
Statement with respect to any Class of Sequential Pay Certificates or any REMIC
III Regular Interest.
"Corresponding REMIC III Regular Interest": As defined in the
Preliminary Statement with respect to any Class of Sequential Pay Certificates
or any Component of the Class IO Certificates.
"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.
"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, a Mortgage Loan Seller or an Affiliate
of the Depositor or any Mortgage Loan Seller. If
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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": With respect to any Mortgage Loan, the Due
Date for such Mortgage Loan in May 2000.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date,
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 related 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 sixty days or more in respect to a Periodic Payment (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 permits or 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.
"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
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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 and status of resolution.
"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 succeeding.
"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 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
discount rate stated in the Mortgage Loan documents related to such Mortgage
Loan or REO Loan used in calculating the related Prepayment Premium or Yield
Maintenance Charge; provided, that if a discount rate is not stated thereon, the
"Discount Rate" will be an amount equal to the yield (when compounded monthly)
on the U.S. Treasury issue with a maturity date closest to the maturity date for
such prepaid Mortgage Loan or REO Loan. In the event there are two or more such
U.S. Treasury issues (a) with the same coupon, the issue with the lowest yield
shall
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apply, and (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 (other than with respect to the Class IO Certificates)(to not less than
zero) by (i) the product of (a) any Net Aggregate Prepayment Interest Shortfall
for such Distribution Date, multiplied by (b) 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, and (ii) with
respect to each such Class (other than the Class IO Certificates), such Class'
share of any Certificate Deferred Interest allocated to such Class in accordance
with Section 4.04(e). With respect to the Class Q 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 (I)
the amount, if any, by which (y) the product of (i) a fraction, the numerator of
which is equal to the Heilig/Petsmart Subordinate Balance and the denominator of
which is equal to the sum of the Heilig/Petsmart Senior Balance and the
Heilig/Petsmart Subordinate Balance, and (ii) the aggregate of all Prepayment
Interest Shortfalls incurred in connection with the receipt of voluntary
Principal Prepayments on the Heilig/Petsmart Mortgage Loans during the related
Collection Period, exceeds (z) the sum of (i) the aggregate amount deposited by
the Master Servicer in the Certificate Account for such Distribution Date
pursuant to Section 3.19(a) in connection with such Prepayment Interest
Shortfalls on the Heilig/Petsmart Mortgage Loans and (ii) the amount described
in clause (II)(y) of the definition of Net Aggregate Prepayment Interest
Shortfall, and (II) with respect to such Class, such Class' share of any
Certificate Deferred Interest allocated to such Class in accordance with Section
4.04(e).
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"Distributable Heilig/Petsmart Senior Component Interest": For
any Distribution Date, the Accrued Heilig/Petsmart Senior Component Interest for
such Distribution Date, reduced by (i) the amount described in clause (II) of
the definition of Net Aggregate Prepayment Interest Shortfall for such
Distribution Date, and (ii) the amount of any Certificate Deferred Interest
allocated to any Class of Sequential Pay Certificates in accordance with Section
4.04(e).
"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
National Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2000-C1".
"Distribution Date": The 15th day of any month, or if such
15th day is not a Business Day, the Business Day immediately succeeding,
commencing on June 16, 2000; 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).
"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 at least (A) "AA" by
Standard & Poor's, or "A", provided that the short-term obligations of which are
rated at least "A-1" and (B) "AA-" by Fitch (if then rated by Fitch) (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
at least "A-1" by Standard & Poor's and "F-1+" by Fitch (if then rated by Fitch)
(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
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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, (i) Chapter 5 of the FNMA Multifamily
Guide or any successor provisions covering the same subject matter in the case
of a Specially Serviced Mortgage Loan as to which the related Mortgaged Property
is multifamily property or (ii) the American Society for Testing and Materials
in the case of Specially Serviced Mortgage Loan as to which the related
Mortgaged Property is not multifamily 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 similar items in respect of the related Mortgaged
Property.
"Event of Default": One or more of the events described in
Section 7.01(a).
"Exchange Act": Securities Exchange Act of 1934, as amended.
"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, Class E Certificates
and Class F 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 any
of the Mortgage Loan Sellers, pursuant to the related 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) that there has
been a recovery of all
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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 Securities": First Union Securities, Inc. or its
successor in interest.
"Fitch": Fitch IBCA, Inc., or its successor in interest. If
neither such rating agency nor any successor remains in existence, "Fitch" shall
be deemed to refer to such other nationally recognized statistical rating agency
or other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, the Master Servicer and the Special
Servicer, and specific ratings of Fitch herein referenced shall be deemed to
refer to the equivalent ratings of the party so designated.
"FNMA": Federal National Mortgage Association or any
successor.
"Grantor Trust": That certain "grantor trust" (within the
meaning of the Grantor Trust Provisions), the assets of which are the Grantor
Trust Assets.
"Grantor Trust Assets": Any Additional Interest with respect
to the ARD Loans after their respective Anticipated Repayment Dates and amounts
held from time to time in the Distribution Account that represent Additional
Interest.
"Grantor Trust Provisions": Subpart E of Subchapter J of the
Code.
"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.
"Heilig/Petsmart 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
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related Determination Date relating to the Heilig/Petsmart Mortgage Loans and
the amounts collected by or on behalf of the Master Servicer as of the close of
business on such Determination Date relating to the Heilig/Petsmart Mortgage
Loans and required to be deposited in the Certificate Account, (ii) the
aggregate amount of any P&I Advances made by the Master Servicer or the Trustee
with respect to the Heilig/Petsmart Mortgage Loans for distribution on the
Certificates on such Distribution Date pursuant to Section 4.03, (iii) the
aggregate amount (relating to REO Property resulting from a foreclosure on a
Heilig/Petsmart Mortgage Loan) 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 relating to the Heilig/Petsmart Mortgage Loans,
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
the (A) Certificate Account pursuant to clauses (ii)-(xiv) and (xvii) 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
relating to the Heilig/Petsmart Mortgage Loans, and (iv) any amounts deposited
in the Certificate Account or the Distribution Account in error.
"Heilig/Petsmart Mortgage Loan Remittance Rate": With respect
to any Heilig/Petsmart Mortgage Loan for any Distribution Date, either: (1) if,
in accordance with its terms in effect on the Closing Date, such Heilig/Petsmart
Mortgage Loan accrues interest on a 30/360 Basis, the Net Mortgage Rate in
effect for such Heilig/Petsmart Mortgage Loan as of the Closing Date; or (2) if,
in accordance with its terms in effect on the Closing Date, such Heilig/Petsmart
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 Stated Principal Balance of such Heilig/Petsmart
Mortgage Loan outstanding immediately prior to such Distribution Date if such
interest were calculated (A) at the Mortgage Rate in effect for such
Heilig/Petsmart 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 such Heilig/Petsmart Mortgage Loan as of the Closing
Date), and the denominator of which is the Stated Principal Balance of such
Heilig/Petsmart Mortgage Loan immediately prior to such Distribution Date, minus
(b) the sum of (i) the Master Servicing Fee Rate for such Heilig/Petsmart
Mortgage Loan; and (ii) the Trustee Fee Rate; provided that, if the Mortgage
Rate of such Heilig/Petsmart Mortgage Loan has been modified 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, the Heilig/Petsmart Mortgage Loan Remittance Rate for
such Heilig/Petsmart Mortgage Loans shall be calculated without regard to such
event.
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"Heilig/Petsmart Mortgage Loans": The Mortgage Loans
identified on the Mortgage Loan Schedule as control numbers 82, 109, 116, 117
and 135.
"Heilig/Petsmart Senior Balance": The principal balance of the
Heilig/Petsmart Senior Component outstanding from time to time which, as of the
Closing Date is equal to $7,746,625.01. On each Distribution Date, the
Heilig/Petsmart Senior Balance shall be reduced by the amount of any
distributions of principal allocated to the Heilig/Petsmart Senior Component on
such Distribution Date pursuant to Section 4.01(k) or 9.01, as applicable, and
shall be further reduced by the amount of any Realized Losses and Additional
Trust Fund Expenses incurred with respect to the Heilig/Petsmart Mortgage Loans
allocated to any Class of Sequential Pay Certificates on such Distribution Date
pursuant to Section 4.04(a). The Heilig/Petsmart Senior Balance will be
increased on any Distribution Date by the amount of any Certificate Deferred
Interest allocated to any Class of Sequential Pay Certificates on such
Distribution Date. Distributions in respect of a reimbursement of Realized
Losses and Additional Trust Fund Expenses previously allocated to any Class of
Sequential Pay Certificates shall not constitute distributions of principal and
shall not result in reduction of the Heilig/Petsmart Senior Balance.
"Heilig/Petsmart Senior Component": An undivided senior
ownership interest in the Heilig/Petsmart Mortgage Loans represented by the
REMIC I Senior Regular Interest.
"Heilig/Petsmart Subordinate Balance": The principal balance
of the Heilig/Petsmart Subordinate Component outstanding from time to time
which, on any date, shall equal the Class Principal Balance of the Class Q
Certificates on such date.
"Heilig/Petsmart Subordinate Component": An undivided
subordinate ownership interest in the Heilig/Petsmart Mortgage Loans represented
by the Class Q Certificates.
"Historical Liquidation 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.
"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 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.
"Holder": A Certificateholder.
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"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 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 or any Affiliate thereof, and (iii) is not connected
with the Depositor, the Master Servicer, the Controlling Class Representative,
the Special Servicer, the Trustee 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 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 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 or REMIC II within the meaning
of Section 856(d)(3) of the Code if REMIC I or REMIC II 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 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 and the Master Servicer), so long as REMIC
I or REMIC II does not receive or derive any income from such Person and
provided that the relationship between such Person and REMIC I or REMIC II 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.
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"Insurance Policy": With respect to any Mortgage Loan, the
Secured Creditor Impaired Property Policies, 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 the restoration of the
related Mortgaged Property, 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.
"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,
an RVI Policy or a Secured Creditor Impaired Property 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, RVI Policy or Secured Creditor
Impaired Property Policy.
"Interest Accrual Period": With respect to each Distribution
Date, the calendar month prior to such Distribution Date.
"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 National Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2000-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 at the related Mortgage Rate 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 except with respect to one Actual/360 Mortgage Loan
(identified on the Mortgage Loan Schedule as control number 30) for the period
during which such Mortgage Loan provides for interest-only payments to be made
in equal monthly installments.
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"Interested Person": The Depositor, the Mortgage Loan Sellers,
the Master Servicer, the Special Servicer, any Independent Contractor hired by
the Special Servicer, any Holder of a Certificate, or any Affiliate of any such
Person.
"Interim Delinquent Loan Status Report": A report
substantially containing the content described in Exhibit V attached hereto,
setting forth those Mortgage Loans which, as of the last day of the calendar
month immediately preceding the preparation of such report, were delinquent.
"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 non-cancelable 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.
"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
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respect to such Mortgage Loan; (iii) such Mortgage Loan is repurchased by a
Mortgage Loan Seller pursuant to the related 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: (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 rights of the Mortgagor under 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 a Mortgage Loan Seller pursuant to the related 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-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 Mortgage Loans": All of the Mortgage Loans other
than the Heilig/Petsmart Mortgage Loans.
"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%
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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 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, (a) the percentage set forth under the column "Loan Administration Cost
Rate" on the Mortgage Loan Schedule that corresponds to such Mortgage Loan minus
(b) the Trustee Fee Rate and, if such Mortgage Loan is a Semi-Annual Mortgage
Loan, the rate at which the Swap Fee accrues.
"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 fee or leasehold interest in the related
Mortgaged Property.
"Mortgage Deferred Interest": With respect to any Mortgage
Loan as to which the Mortgage Rate has been reduced through a modification and
any Distribution Date, the amount by which (a) interest accrued at such reduced
rate is less than (b) the amount of interest that would have accrued on such
Mortgage Loan at the Mortgage Rate before such reduction, to the extent such
amount has been added to the outstanding principal balance of such Mortgage
Loan.
"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 on its
face or by allonge attached thereto (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
National Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2000-C1 or
in blank;
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(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 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 National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series
2000-C1, or in blank;
(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 National Bank
Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2000-C1, or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those
instances where the terms or provisions of the Mortgage
or Mortgage Note have been consolidated or modified or
the Mortgage Loan has been assumed;
(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 (bearing evidence of filing) or
other evidence of filing satisfactory to the Trustee 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 and
continuation statements 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
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of First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series
2000-C1, or in blank;
(ix) an original or copy of any Ground Lease, any Credit
Lease and any Secured Creditor Impaired Property
Policy, Lease Enhancement Policy, RVI Policy or
Guaranty; and
(x) any intercreditor agreement relating to permitted debt
of the Mortgagor.
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 clauses
(vi) and (ix) (solely with respect to any Guaranty) of 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 transferred and
assigned to the Trust Fund pursuant to Section 2.01 and 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, any Secured Creditor Impaired Property
Policy and other security documents contained in the related Mortgage File.
"Mortgage Loan Purchase Agreements": Those certain mortgage
loan purchase agreements, each dated as of May 1, 2000, between the Depositor
and the respective 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 and REMIC II,
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;
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(v) the original Mortgage Rate;
(vi) the (A) original term to stated maturity, (B) remaining
term to stated maturity and (C) the Stated Maturity
Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the original and remaining amortization term;
(ix) whether the Mortgage Loan is secured by a Ground Lease;
(x) the Master Servicing Fee Rate;
(xi) whether such Mortgage Loan is an ARD Loan and if so the
Anticipated Repayment Date and Additional Interest Rate
for such ARD Loan;
(xii) whether the Mortgage Loan is an Actual-360 Mortgage
Loan;
(xiii) the related Mortgage Loan Seller;
(xiv) whether the Mortgage Loan is a Credit Lease Loan and
if so, the related Tenant or guarantor of such Credit
Lease Loan;
(xv) whether such Mortgage Loan is insured by a Lease
Enhancement Policy or an RVI Policy;
(xvi) whether such Mortgage Loan is cross-defaulted with any
other Mortgage Loan;
(xvii) whether such Mortgage Loan is a Defeasance Loan,
Semi-Annual Mortgage Loan, or Insured Balloon Loan;
(xviii) whether the Mortgage Loan is secured by a letter of
credit;
(xix) whether such Mortgage Loan is an Interest Reserve
Loan;
(xx) whether payments on such Mortgage Loan are made to a
lock-box; and
(xxi) the amount of any Reserve Funds escrowed in respect of
each Mortgage Loan.
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"Mortgage Loan Seller": Any of First Union National Bank or
its successor in interest or Merrill Lynch Mortgage Capital Inc. 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, not including any
Additional Interest 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, 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, provided, however, that if any Mortgage Loan does not accrue
interest on the basis of a 360-day year consisting of twelve 30-day months,
then, solely for purposes of calculating the Pass- Through Rates, the Mortgage
Rate of such Mortgage Loan for any one-month period preceding a related Due Date
will be the annualized rate at which interest would have to accrue in respect of
such Mortgage Loan on the basis of a 360-day year consisting of twelve 30-day
months in order to produce the aggregate amount of interest actually accrued
(exclusive of Penalty Interest or Additional Interest) in respect of such
Mortgage Loan during such one-month period at the related Mortgage Rate;
provided, however, that with respect to each Interest Reserve Loan, the Mortgage
Rate for the one-month period (A) preceding the Due Dates that occur in January
and February in any year which is not a leap year or preceding the Due Date that
occurs in February in any year which is a leap year, and (B) preceding the Due
Date in March, will be the per annum rate stated in the related Mortgage Note.
"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 sum of (I) the amount, if any, by which (a) the
aggregate of all Prepayment Interest Shortfalls incurred in connection with the
receipt of voluntary Principal Prepayments on the Majority Mortgage Loans during
the related Collection Period, exceeds (b) the aggregate amount deposited by the
Master Servicer in the Certificate Account for such Distribution Date pursuant
to
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Section 3.19(a) in connection with such Prepayment Interest Shortfalls on the
Majority Mortgage Loans, plus (II) the amount, if any, by which (y) the product
of (i) a fraction, the numerator of which is equal to the Heilig/Petsmart Senior
Balance and the denominator of which is equal to the sum of the Heilig/Petsmart
Senior Balance and the Heilig/Petsmart Subordinate Balance, and (ii) the
aggregate of all Prepayment Interest Shortfalls incurred in connection with the
receipt of voluntary Principal Prepayments on the Heilig/Petsmart Mortgage Loans
during the related Collection Period, exceeds (z) the aggregate amount deposited
by the Master Servicer in the Certificate Account for such Distribution Date
pursuant to Section 3.19(a) in connection with such Prepayment Interest
Shortfalls on the Heilig/Petsmart Mortgage Loans.
"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, the applicable Master
Servicing Fee Rate and, if such Mortgage Loan is a Semi-Annual Mortgage Loan,
the rate at which the Swap Fee accrues.
"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 at the
direction of the Special Servicer on behalf of REMIC I or REMIC II, including
any lease renewed, modified or extended on behalf of REMIC I or REMIC II if
REMIC I or REMIC II 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
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T to "normalize" the full year net operating income and debt service coverage
numbers used in the other reports required by this Agreement and in accordance
with the most recent CMSA standards.
"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 applicable, in accordance with the Servicing
Standard with respect to such P&I Advance will not be ultimately recoverable
from Late Collections, Insurance Proceeds or Liquidation Proceeds, or any other
recovery on or in respect of such Mortgage Loan or REO Loan.
"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, the Special 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 Collections, Insurance Proceeds, Liquidation Proceeds, or any other
recovery on or in respect of such Mortgage Loan or REO Property.
"Non-Registered Certificate": Unless and until registered
under the Securities Act, any Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class Q, Class R-I, Class R-II, Class R-III or Class IV Certificate.
"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 and conforming to the most recent
CMSA standard.
"Opinion of Counsel": A written opinion of counsel (which
counsel may be a salaried counsel for 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 except that any opinion of counsel relating to (a)
the qualification of REMIC I, REMIC II, REMIC III or REMIC IV as a REMIC; (b)
the qualification of the Grantor Trust as a grantor trust; (c) compliance with
REMIC provisions or (d) the resignation of the Master Servicer, Special Servicer
or Depositor pursuant to Section 6.04 must
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be an opinion of counsel who is in fact Independent of the Master Servicer,
Special Servicer or Depositor; as applicable.
"Original Class Principal Balance": With respect to any Class
of Regular Certificates (other than the Class IO Certificates), the initial
Class Principal Balance thereof as of the Closing Date, in each case as
specified in the Preliminary Statement. With respect to the Class Q
Certificates, the initial Class Principal Balance thereof as of the Closing
Date, which is $2,127,760.53.
"Original Notional Amount": $776,325,806.
"OTS": The Office of Thrift Supervision or any successor
thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"Pass-Through Rate": With respect to:
(i) the Class A-1 Certificates for any Distribution
Date, 7.739% per annum;
(ii) the Class A-2 Certificates for any Distribution
Date, 7.841% per annum;
(iii) the Class B Certificates for any Distribution Date,
the lesser of (A) 7.973% per annum and (B) the REMIC
III Remittance Rate for such Distribution Date;
(iv) the Class C Certificates for any Distribution Date,
the lesser of (A) 8.087% per annum and (B) the REMIC
III Remittance Rate for such Distribution Date;
(v) the Class D Certificates for any Distribution Date,
the lesser of (A) 8.185% per annum and (B) the REMIC
III Remittance Rate for such Distribution Date;
(vi) the Class E Certificates for any Distribution Date,
the REMIC III Remittance Rate for such Distribution
Date;
(vii) the Class F Certificates for any Distribution Date,
the REMIC III Remittance Rate for such Distribution
Date;
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(viii) the Class G Certificates for any Distribution Date,
6.25% per annum;
(ix) the Class H Certificates for any Distribution Date,
6.25% per annum;
(x) the Class J Certificates for any Distribution Date,
6.25% per annum;
(xi) the Class K Certificates for any Distribution Date,
6.25% per annum;
(xii) the Class L Certificates for any Distribution Date,
6.25% per annum;
(xiii) the Class M Certificates for any Distribution Date,
6.25% per annum;
(xiv) the Class N Certificates for any Distribution Date,
6.25% per annum;
(xv) each Component of the Class IO Certificates for any
Distribution Date, the excess, if any, of the REMIC
III Remittance Rate for such Distribution Date, over
the Pass-Through Rate applicable for such
Distribution Date to the Class of Sequential Pay
Certificates as to which it is the Corresponding
Component; and
(xvi) the Class Q Certificates for any Distribution Date,
the Weighted Average REMIC I Remittance Rate for
such Distribution Date.
"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, Additional Interest, 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
or any Class Q Certificate, the portion of the relevant Class evidenced by such
Certificate, expressed as a
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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 Class 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 or be
liquidated prior to maturity. In addition, any such
item must not have an "r" highlighter affixed to its
rating by Standard & Poor's. 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;
(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
Standard & Poor's and Fitch 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 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;
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(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 Standard & Poor's and
Fitch 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, its terms should have a predetermined
fixed dollar amount of principal due at maturity
that cannot vary or change. 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 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 Standard & Poor's and Fitch 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 by its terms must have a
predetermined fixed dollar amount of principal due
at maturity that cannot vary or change. 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 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 AAAm or AAAm-G by
Standard & Poor's and in the highest rating category
of Fitch (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.
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 vary or change; and
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(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, RVI Policy or Secured Creditor Impaired Property Policy, any
abatement, rescission, cancellation, termination, contest, legal process,
arbitration or disavowal of liability thereunder by the related insurer.
"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
Prospectus), except that it is assumed that each ARD Loan is repaid on its
Anticipated Repayment Date.
"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 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 and if
applicable, the Additional Interest) 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) and ending on
the date such Principal Prepayment was applied to such Mortgage Loan, to the
extent collected (exclusive of any related Prepayment Premium or Yield
Maintenance Charge actually collected).
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"Prepayment Interest Shortfall": With respect to any Mortgage
Loan that was subject to a voluntary 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 (excluding any part allocable
to the Heilig/Petsmart Subordinate Component):
(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, to the extent not previously received or advanced with respect
to a Distribution Date prior to 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 the related Mortgagor during the related
Collection Period (including any Balloon Payment), net of any portion
of such payment that
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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 the principal portion 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 Sequential Pay
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.
"Principal Recovery Fee": With respect to each Specially
Serviced Mortgage Loan and REO Loan, the fee payable to the Special Servicer out
of certain related recoveries pursuant to the second paragraph of Section
3.11(c).
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"Principal Recovery Fee Rate": With respect to all amounts
set forth in the third paragraph of Section 3.11(c), 1.00%.
"Privileged Person": Any Certificateholder, Certificate Owner,
any Person identified to the Trustee or the Master Servicer, as applicable, as a
prospective transferee of a Certificate or interest therein, any Rating Agency,
either Mortgage Loan Seller, either Underwriter or any party hereto; provided
that no Certificate Owner or prospective transferee of a Certificate or interest
therein shall be considered a "Privileged Person" or be entitled to a password
or restricted access as contemplated by Section 3.15 unless such Person has
delivered to the Trustee or the Master Servicer, as applicable, a certification
in the form of Exhibit X-1 or Exhibit X-2, as applicable.
"Proposed Successor": As defined in Section 6.04.
"Prospectus": The prospectus dated April 18, 2000, as
supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement": The final prospectus supplement
dated April 28, 2000 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 a Mortgage Loan Seller pursuant to the related 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, 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 made with respect to such
Mortgage Loan, (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 a 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; 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 (i) with a minimum claims paying ability rating of at least "A" by
Standard & Poor's and Fitch (or if not rated by Fitch then "A- IX" by A.M. Best)
(or the obligations of which are guaranteed or backed by a company having such a
claims paying ability) and (ii) with respect to the fidelity bond and errors and
omissions Insurance Policy required to be maintained pursuant to Section
3.07(c), an insurance company that has a claims paying ability rated no lower
than two rating categories (without regard to pluses or minuses or numerical
qualifications) below the rating assigned to the then highest rated outstanding
Certificate (or, with
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respect to the required Fitch rating, if not rated by Fitch, then "A-IX" by A.M.
Best), but in no event lower than "A" by Standard & Poor's and Fitch (or if not
rated by Fitch then "A-IX" by A.M. Best) or, in the case of clauses (i) and
(ii), such other rating as each Rating Agency shall have confirmed in writing
will not cause such Rating Agency to downgrade, qualify or withdraw the
then-current rating assigned to any of the Certificates that are then currently
being rated by such Rating Agency.
"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 (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) be determined by an Opinion of Counsel (at the applicable
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 applicable
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 (or, if there is no Controlling Class
Representative then serving, by the Holders of Certificates representing a
majority of the Voting Rights allocated to the Controlling Class), which
approval may not be unreasonably withheld or delayed; 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
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for a deleted Mortgage Loan, the applicable 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 in May
2032, the first Distribution Date after the 24th month following the end of the
amortization term for the Mortgage Loan that, as of the Cut-off Date, has the
longest remaining amortization term.
"Rating Agency": Each of Standard & Poor's and Fitch.
"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 (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 (exclusive of any portion
thereof that constitutes default interest in excess of the Mortgage Rate,
Additional Interest, Prepayment Premiums or Yield Maintenance Charges), 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 Additional Interest and 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.
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"Registered Certificate": Any Class A-1, Class A-2, Class B,
Class C, Class D, Class E, Class F, or Class IO Certificate.
"Regular Certificate": Any REMIC IV Certificate other than a
Class R-IV 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 Administrator": The Trustee or any REMIC administrator
appointed pursuant to Section 8.14.
"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.
"REMIC Principal Balance": The principal amount of any REMIC I
Senior Regular Interest, REMIC I Subordinate Regular Interest, REMIC II Regular
Interest or REMIC III Regular Interest outstanding as of any date of
determination. As of the Closing Date, the REMIC Principal Balance of the REMIC
I Senior Regular Interest shall equal the Heilig/Petsmart Senior Balance as of
the Closing Date, the REMIC Principal Balance of the REMIC I Subordinate Regular
Interest shall equal the Heilig/Petsmart Subordinate Balance as of the Closing
Date, the REMIC Principal Balance of each REMIC II Regular Interest shall equal
the Cut-off Date Balance of the related Majority Mortgage Loan or the REMIC
Principal Balance of the related REMIC I Senior Regular Interest, and the REMIC
Principal Balance of each REMIC III Regular Interest shall equal the Original
Class Principal Balance of the corresponding Class of Sequential Pay
Certificates as set forth in the Preliminary Statement hereto. On each
Distribution Date, the REMIC Principal Balance of each REMIC III 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 II Regular Interest
shall be permanently reduced by all distributions of principal deemed to have
been made in respect of such REMIC II 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
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Balance of the REMIC I Subordinate Regular Interest shall be permanently reduced
by all distributions of principal made in respect of the Class Q Certificates on
such Distribution Date pursuant to Section 4.01(k)(v), and shall be further
permanently reduced on such Distribution Date by all Realized Losses and
Additional Trust Fund Expenses allocated to the Class Q Certificates on such
Distribution Date pursuant to Section 4.04(a). On each Distribution Date, the
REMIC Principal Balance of the REMIC I Senior Regular Interest shall be
permanently reduced by all distributions of principal deemed to have been made
in respect of the REMIC I Senior Regular Interest on such Distribution Date
pursuant to Section 4.01(j), 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(d).
"REMIC I": The segregated pool of assets subject hereto,
constituting a portion of 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 Heilig/Petsmart 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, Workout Fee or Principal
Recovery Fee that is deemed to be in excess of the amount of such Servicing Fee,
Workout Fee or Principal Recovery Fee that 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 Heilig/Petsmart
Mortgage Loan; (iii) such funds or assets representing any interest (other than
Penalty Interest) or principal payable on the Heilig/Petsmart Mortgage Loans
which is attributable to any portion of a Servicing Fee, Workout Fee or
Principal Recovery Fee that is deemed to be in excess of the amount of such
Servicing Fee, Workout 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; (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 with Merrill Lynch Mortgage Capital Inc. with
respect to the Heilig/Petsmart Mortgage Loans; and (v) the rights of the
mortgagee under all Insurance Policies with respect to the Heilig/Petsmart
Mortgage Loans.
"REMIC I Regular Interest": The REMIC I Senior Regular
Interest or the REMIC I Subordinate Regular Interest.
"REMIC I Remittance Rate": With respect to any Distribution
Date, the Weighted Average REMIC I Remittance Rate for such Distribution Date.
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"REMIC I Senior Regular Interest": The separate
non-certificated beneficial ownership interest in REMIC I issued hereunder and
designated as a "regular interest" in REMIC I, as described in the Preliminary
Statement hereto, and held by REMIC II
"REMIC I Subordinate Regular Interest": The separate
beneficial ownership interest in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I, as described in the Preliminary Statement hereto
and evidenced by the Class Q Certificates.
"REMIC II": 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) all of the Majority Mortgage Loans as from time to time are subject to
this Agreement and all payments under and proceeds of such Majority Mortgage
Loans received after the Closing Date (excluding (a) all Additional Interest on
such Majority Mortgage Loans, and (b) any interest (other than Penalty Interest)
or principal payable on such Majority Mortgage Loans which is attributable to
any portion of a Servicing Fee, Workout Fee or Principal Recovery Fee that is
deemed to be in excess of the amount of such Servicing Fee, Workout Fee or
Principal Recovery Fee that constitutes reasonable servicing compensation within
the meaning of the REMIC Provisions), together with all documents included in
the related Mortgage Files and any related Escrow Payments and Reserve Funds;
(ii) any REO Property acquired in respect of such a Majority Mortgage Loan;
(iii) such funds or assets (other than Additional Interest) representing any
interest (other than Penalty Interest) or principal payable on such Majority
Mortgage Loans which is attributable to any portion of a Servicing Fee, Workout
Fee or Principal Recovery Fee that is deemed to be in excess of the amount of
such Servicing Fee, Workout 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; (iv)
the rights of the Depositor under Sections 2, 3, 9, 10, 12, 13, 14, 15, 16 and
17 of each of the Mortgage Loan Purchase Agreement with respect to such Majority
Mortgage Loans; (v) the rights of the mortgagee under all Insurance Policies
with respect to such Majority Mortgage Loans; and (vi) the REMIC I Senior
Regular Interest.
"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, as described in the Preliminary
Statement hereto.
"REMIC II Remittance Rate": With respect to any REMIC II
Regular Interest for any Distribution Date: (1) if such REMIC II Regular
Interest relates to the REMIC I Senior Regular Interest, the REMIC I Remittance
Rate for the REMIC I Senior Regular Interest, or (2) if such REMIC II Regular
Interest relates to a Majority Mortgage Loan, either (A) if, in accordance with
its terms in effect on the Closing Date, the related Majority Mortgage Loan
accrues interest on a 30/360 Basis, the Net Mortgage Rate in effect for the
related Majority Mortgage Loan as of the Closing Date; or (B) if, in accordance
with its terms in effect on the Closing Date, the related Majority
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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 II Regular
Interest outstanding immediately prior to such Distribution Date if such
interest were calculated (a) at the Mortgage Rate in effect for the related
Majority 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 Majority Mortgage Loan as of the Closing Date), and
the denominator of which is the REMIC Principal Balance of such REMIC II Regular
Interest immediately prior to such Distribution Date, minus (b) the sum of (i)
the Master Servicing Fee Rate for the related Majority Mortgage Loan; (ii) the
Trustee Fee Rate and (iii) if applicable, the rate at which the Swap Fee
accrues; provided that, in the case of an Interest Reserve Loan, the amount of
the numerator for the fraction described in clause (2)(B)(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' interest at the
related Mortgage Rate in effect as of the Closing Date; provided further that,
if the Mortgage Rate of the related Majority Mortgage Loan has been modified 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, the REMIC II Remittance Rate for such
Majority Mortgage Loan shall be calculated without regard to such event.
"REMIC III": The segregated pool of assets consisting of all
of the REMIC II Regular Interests conveyed in trust to the Trustee for the
benefit of REMIC IV, as holder of the REMIC III Regular Interests, and the
Holders of the Class R-III Certificates pursuant to Section 2.06, with respect
to which a separate REMIC election is to be made.
"REMIC III Regular Interest": Any of the separate
non-certificated beneficial ownership interests in REMIC III issued hereunder
and designated as a "regular interest" in REMIC III. Each REMIC III Regular
Interest shall accrue interest at the REMIC III 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 described in the Preliminary Statement hereto. The
designations for the respective REMIC III Regular Interests are set forth in the
Preliminary Statement hereto.
"REMIC III Remittance Rate": With respect to each REMIC III
Regular Interest for any Distribution Date, the Weighted Average REMIC II
Remittance Rate for such Distribution Date.
"REMIC IV": The segregated pool of assets consisting of all of
the REMIC III Regular Interests conveyed in trust to the Trustee pursuant to
Section 2.08 for the benefit of the
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Holders of the REMIC IV Certificates pursuant to Section 2.08, with respect to
which a separate REMIC election is to be made.
"REMIC IV Certificate": Any Class A-1, Class A-2, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class IO, Class J, Class
K, Class L, Class M, Class N or Class R-IV Certificate.
"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 "ORIX Real
Estate Capital Markets, LLC, as Special Servicer, in trust for registered
holders of First Union National Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2000-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 be outstanding for so long as the related REO Property remains part of REMIC
I or REMIC II and deemed to provide for Periodic 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 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, selling, leasing 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
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the Due Date in the Collection Period of receipt (exclusive of any portion
thereof that constitutes Additional Interest); 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, including, without limitation, (i) Yield Maintenance Charges,
Prepayment Premiums and Penalty Interest and (ii) Additional Interest and other
amounts, in that order. 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.
"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.
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"Required Appraisal Date": With respect to any Required
Appraisal Mortgage Loan, the earliest date on which any of the items specified
in clauses (i) through (vi) of the definition of Required Appraisal Mortgage
Loan occurs.
"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 is appointed and continues in
such capacity in respect of the related Mortgaged Property, (v) with respect to
which a Mortgagor declares bankruptcy or 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, Class R-III
or 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": Each of the Watch List,
Operating Statement Analysis, NOI Adjustment Worksheet and Comparative Financial
Status Report.
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"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 Periodic Payment of principal and interest (other than Additional
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 or acceleration of principal by reason of default, and
assuming that each prior Scheduled Payment has been made in a timely manner.
"Secured Creditor Impaired Property Policy": A secured
creditor impaired policy naming the Trustee, as trustee hereunder, as the named
insured, and issued by Commerce & Industry Insurance Company, a member company
of American International Group, Inc., and all such policies collectively the
"Secured Creditor Impaired Property Policies."
"Secured Creditor Impaired Property Policy Insurer": With
respect to any Secured Creditor Impaired Property Policy, Commerce and Industry
Insurance Company, together with any assignee, successor, or subsequent insurer
thereunder.
"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 and net of the Swap Fee).
"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 (other than Additional Interest) on such
Semi-Annual Mortgage Loan that relates to interest and that is payable by the
related Mortgagor under the related Mortgage Note.
"Semi-Annual Loan Swap Agreement": The swap transaction
confirmation dated as of May 1, 2000 between First Union National Bank and First
Union National Bank RC6578 with
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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.
"Senior Certificate": Any Class A-1, Class A-2 or Class IO
Certificate.
"Sequential Pay Certificates": Any of the Regular
Certificates other than the Class IO 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
3.02(d) and 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 compliance
with Section 3.16(a) (to the extent not covered by available funds in the REO
Account) and Section 3.20(h) (to the extent not paid by the related Mortgagor)
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.
"Servicer Fee Amount": With respect to each Sub-Servicer and
any date of determination, the aggregate of the products obtained by
multiplying, for each Mortgage Loan serviced by such Sub-Servicer, (a) the
principal balance of such Mortgage Loan as of the end of the immediately
preceding Collection Period and (b) the servicing fee rate specified in the
related
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Sub-Servicing Agreement for such Mortgage Loan. With respect to the Master
Servicer and any date of determination, the aggregate of the products obtained
by multiplying, for each Mortgage Loan, (a) the principal balance of such
Mortgage Loan as of the end of the immediately preceding Collection Period and
(b) the difference between the Master Servicing Fee Rate for such Mortgage Loan
over the servicing fee rate (if any) applicable to such Mortgage Loan as
specified in any Sub- Servicing Agreement related to such Mortgage Loan.
"Servicing Fees": With respect to each Mortgage Loan and REO
Loan, the Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents
required to be part of the related Mortgage File) 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, any 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 to make Advances; (v) the
ownership, servicing or management for others of any other mortgage loans or
mortgaged property; and (vi) any obligation of the Master Servicer or any
Affiliate of the Master Servicer to repurchase or substitute a Mortgage Loan as
a Mortgage Loan Seller.
"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".
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"Single Certificate": For purposes of Section 4.02, a
hypothetical Certificate of any Class of Regular Certificates evidencing a
$1,000 denomination.
"Special Servicer": ORIX Real Estate Capital Markets, LLC, 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).
"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 60 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 Periodic
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
Periodic 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 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 and that continues
unremedied for the applicable grace
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period under the terms of the Mortgage Loan (or, if no
grace period is specified, for 60 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, 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
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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;
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 and provided no additional default is
foreseeable in the reasonable judgment of the Special Servicer.
"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 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 and, in the case of an ARD Loan, without regard to its
Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan
(and any successor REO Loan), 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), (a) as permanently reduced on
each Distribution Date (to not less than zero) by (i) all payments (or advances
in lieu thereof) and
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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 and (b) increased on each
Distribution Date by any Mortgage Deferred Interest added to the principal
balance of such Mortgage Loan on such Distribution Date. Notwithstanding the
foregoing, if a Liquidation Event occurs in respect of any Mortgage Loan or REO
Property, then the "Stated Principal Balance" of such Mortgage Loan or of the
related REO Loan, as the case may be, shall be zero commencing as of the
Distribution Date in the Collection Period next following the Collection Period
in which such Liquidation Event occurred.
"Subordinated Certificate": Any Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class Q, Class R-I, Class R-II, Class R-III or Class R-IV Certificate.
"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.
"Swap Fee": The 0.15115% per annum fee payable under the
Semi-Annual Loan Swap Agreement.
"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
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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 due to its classification as a REMIC
under the REMIC Provisions, and the federal income tax return to be filed on
behalf of the Grantor Trust due to its classification as a grantor trust under
the Grantor Trust Provisions, together with any and all other information,
reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service 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.
"Trust Fund": Collectively, (i) all of the assets of REMIC I,
REMIC II, REMIC III and REMIC IV, (ii) any interest payable on the Mortgage
Loans which is attributable to any portion of a Servicing Fee, Workout Fee or
Principal Recovery Fee that is deemed to be in excess of the amount of such
Servicing Fee, Workout Fee or Principal Recovery Fee that constitutes reasonable
servicing compensation within the meaning of the REMIC Provisions, and (iii) the
Grantor Trust Assets.
"Trustee": Norwest Bank Minnesota, National Association, its
successor in interest, or any successor trustee appointed as herein provided.
"Trustee Fee": 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": 0.00385% per annum.
"Trustee Liability": As defined in Section 8.05(b).
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"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.
"Uncertificated Accrued Interest": With respect to the REMIC I
Senior Regular Interest, for any Distribution Date, one month's interest at the
REMIC I Remittance Rate applicable to the REMIC I Senior Regular Interest for
such Distribution Date, accrued on the REMIC Principal Balance of the REMIC I
Senior Regular Interest outstanding immediately prior to such Distribution Date
and, to the extent permitted under applicable law, also on any Uncertificated
Accrued Interest in respect of the REMIC I Senior Regular Interest from prior
Distribution Dates that was not previously deemed paid. With respect to 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 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 Uncertificated Accrued
Interest in respect of such REMIC II Regular Interest from prior Distribution
Dates that was not previously deemed paid. With respect to any REMIC III Regular
Interest, for any Distribution Date, one month's interest at the REMIC III
Remittance Rate, accrued on the REMIC Principal Balance of such REMIC III
Regular Interest outstanding immediately prior to such Distribution Date.
Uncertificated Accrued Interest in respect of any REMIC I Regular Interest, any
REMIC II Regular Interest or any REMIC III Regular Interest shall accrue on a
30/360 Basis and, with respect to any REMIC I Regular Interest, any REMIC II
Regular Interest or REMIC III Regular Interest for any Distribution Date, shall
be deemed to accrue during the calendar month preceding the month in which such
Distribution Date occurs.
"Uncertificated Distributable Interest": With respect to the
REMIC I Senior Regular Interest for any Distribution Date, the Uncertificated
Accrued Interest in respect of the REMIC I Senior Regular Interest for such
Distribution Date, reduced (to not less than zero) by the amount described in
clause (II) of the definition of Net Aggregate Prepayment Interest Shortfall for
such Distribution Date. With respect to any REMIC II Regular Interest for any
Distribution Date, the Uncertificated 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 Uncertificated Accrued Interest in respect of such
REMIC II Regular Interest for such Distribution Date, and the denominator of
which is the aggregate Uncertificated Accrued Interest in respect of all the
REMIC II Regular Interests for such Distribution Date. With respect to any REMIC
III Regular Interest for any Distribution Date, the Uncertificated Accrued
Interest in respect of such REMIC III 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
Uncertificated Accrued Interest in respect of such REMIC III Regular Interest
for such
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Distribution Date, and the denominator of which is the aggregate Uncertificated
Accrued Interest in respect of all the REMIC III Regular Interests for such
Distribution Date.
"Underwriter": Each of Merrill Lynch, Pierce, Fenner & Smith
Incorporated, First Union Securities or, in each case, its successor in
interest.
"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 is includable in gross income
for United States federal income tax purposes regardless of its source, or a
trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
Persons have the authority to control all substantial decisions of the trust,
all within the meaning of Section 7701(a) (30) of the Code.
"Unrestricted Servicer Reports": Each of the Delinquent Loan
Status Report, Historical Loan Modification Report, Historical Liquidation
Report, REO Status Report and Interim Delinquent Loan Status 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 Regular Certificates. 96% of the Voting Rights shall be allocated
among the Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M and Class N 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;
provided, further, however, that the aggregate Appraisal Reduction Amount shall
not reduce the Class Principal Balance of any Class for purposes of determining
the Controlling Class. 4% of the Voting Rights shall be allocated to the Class
IO Certificates. The Class Q Certificates shall have no voting rights. 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
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Loan (i) with a Debt Service Coverage Ratio of less than 1.05x (other than with
respect to Credit Lease Loans), (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
Heilig/Petsmart Mortgage Loan Remittance Rates applicable to the Heilig/Petsmart
Mortgage Loans for such Distribution Date, weighted on the basis of the
respective Stated Principal Balances of such Heilig/Petsmart Mortgage Loans
outstanding immediately prior to such Distribution Date.
"Weighted Average REMIC II 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 II Remittance Rates applicable to the REMIC II Regular Interests for such
Distribution Date, weighted on the basis of the respective REMIC Principal
Balances of such REMIC II Regular Interests outstanding immediately prior to
such Distribution Date.
"Weighted Average REMIC III Remittance Rate": With respect to
any REMIC III Regular Interest for any Distribution Date, the REMIC III
Remittance for such REMIC III Regular Interest for such Distribution Date.
"Workout Fee": With respect to each Corrected Mortgage Loan,
the fee designated as such and payable to the Special Servicer pursuant to the
second paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage
Loan, 1.00%.
"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 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
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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 having maturity dates most closely approximating the maturity of such
Mortgage Loan. 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]) 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]) 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 5.44%.
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, in trust, 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 rights of the
Depositor under Sections 2, 3, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of each of
the Mortgage Loan Purchase Agreements 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 Sellers, in each case, pursuant
to the applicable Mortgage Loan Purchase Agreement, to deliver to and deposit
with, or cause to be delivered to and deposited with, the Trustee or a
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Custodian appointed thereby (with a copy to the Master Servicer and Special
Servicer), on or before the Closing Date, the Mortgage File for each Mortgage
Loan so assigned. The Special Servicer may request the Master Servicer to
deliver a copy of the Servicing File for any Mortgage Loan (other than a
Specially Serviced Mortgage Loan) at the expense of the Special Servicer, unless
such request relates to a Specially Serviced Mortgage Loan, in which case it
shall be at the expense of the Trust Fund. None of the Trustee, any Custodian,
the Master Servicer or the Special Servicer shall be liable for any failure by
any Mortgage Loan Seller or the Depositor to comply with the document delivery
requirements of the respective Mortgage Loan Purchase Agreement and this Section
2.01 (b).
(c) If the Mortgage Loan Seller cannot deliver, or cause to be
delivered, on the Closing Date, as to any Mortgage Loan, any of the documents
and/or instruments referred to in clauses (ii), (iii), (vi) (if recorded) and
(viii) of the definition of "Mortgage File", with evidence of recording thereon,
solely because of a delay caused by the public recording office where such
document or instrument has been delivered for recordation, the delivery
requirements of the Mortgage Loan Purchase Agreement and Section 2.01(b) shall
be deemed to have been satisfied as to such non-delivered document or
instrument, and such non-delivered document or instrument shall be deemed to
have been included in the Mortgage File, provided that a photocopy of such non-
delivered document or instrument (certified by the Mortgage Loan Seller to be a
true and complete copy of the original thereof submitted for recording) is
delivered to the Trustee or a Custodian appointed thereby on or before the
Closing Date, and either the original of such non-delivered document or
instrument, or a photocopy thereof, with evidence of recording thereon, is
delivered to the Trustee or such Custodian within 120 days of the Closing Date
(or within such longer period after the Closing Date as the Trustee may consent
to, which consent shall not be unreasonably withheld so long as the Mortgage
Loan Seller is, in good faith, attempting to obtain from the appropriate county
recorder's office such original or photocopy). If the Mortgage Loan Seller
cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of the
documents and/or instruments referred to in clauses (ii), (iii), (vi) (if
recorded) and (viii) of the definition of "Mortgage File," with evidence of
recording thereon, for any other reason, including, without limitation, that
such non- delivered document or instrument has been lost, the delivery
requirements of the Mortgage Loan Purchase Agreement and Section 2.01(b) shall
be deemed to have been satisfied as to such non- delivered document or
instrument, and such non-delivered document or instrument shall be deemed to
have been included in the Mortgage File, provided that a photocopy of such
non-delivered document or instrument (with evidence of recording thereon) is
delivered to the Trustee or a Custodian appointed thereby on or before the
Closing Date.
If, on the Closing Date as to any Mortgage Loan, the Mortgage
Loan Seller does not deliver in complete and recordable form any one of the
assignments in favor of the Trustee referred to in clause (iv) or (v) of the
definition of "Mortgage File", the Mortgage Loan Seller may provisionally
satisfy the delivery requirements of the related Mortgage Loan Purchase
Agreement and Section 2.01(b) by delivering with respect to such Mortgage Loan
on the Closing Date an omnibus assignment of such Mortgage Loan; provided that
all required original assignments with respect to such Mortgage Loan in fully
complete and recordable form shall be delivered to the
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Trustee or its Custodian within 120 days of the Closing Date (or within such
longer period as the Trustee in its discretion may permit).
(d) The Trustee shall, at the Depositor's expense and
direction, as to each Mortgage Loan, promptly (and in any event within 75 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 (to the
extent the Trustee has actual knowledge that such documents are to be recorded)
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 the recorded original 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, at the expense of
the Depositor. If 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 appropriate Mortgage Loan Seller pursuant to the applicable 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. On a monthly basis, the Trustee shall forward to the Master
Servicer a copy of each of the aforementioned recorded assignments following the
Trustee's receipt thereof, to the extent not previously provided.
(e) All documents and records in the Servicing File in
possession of the Depositor or the Mortgage Loan Sellers 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 (including any original letters of
credit), together with 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
applicable 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.
(f) 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 and hereby represents and warrants
that it has delivered a copy of a fully executed counterpart of each Mortgage
Loan Purchase Agreement, as in full force and effect on the Closing Date.
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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 provisos in the definition of "Mortgage File" and the provisions
of Section 2.01 and subject to the further limitations on review provided for in
Section 2.02(b) and the exceptions noted on the schedule of exceptions of (i)
the Mortgage File delivered to it for each Mortgage Loan and (ii) a copy of a
fully executed counterpart of each 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
Sellers, that except as identified in the schedule of exceptions, which is
attached hereto as Exhibit C-1 without regard to the proviso in the definition
of "Mortgage File", each of the original executed Mortgage Notes as described in
clause (i) of the definition of Mortgage File are in its possession. In
addition, within ninety (90) days after the Closing (and if any exceptions are
noted, again on or about the 180th day following the Closing Date and, if any
exceptions are noted, again on or about the first anniversary of the Closing
Date), the Trustee or the Custodian on its behalf will review the Mortgage Files
and certify (in a certificate substantially in the form of Exhibit C-2) to each
of the Depositor, the Master Servicer, the Special Servicer and the Mortgage
Loan Sellers that, with respect to each Mortgage Loan listed in the Mortgage
Loan Schedule, except as specifically identified in the schedule of exceptions
annexed thereto, (i) without regard to the proviso in the definition of
"Mortgage File," all documents specified in clauses (i), (ii), (iv)(a), (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 (iii),
(iv)(b), (iv)(c), (vi), (viii) and (ix) of the definition of "Mortgage File" are
in its possession, (ii) all documents delivered or caused to be delivered by the
applicable 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)(c) of
the definition of "Mortgage Loan Schedule" is correct.
(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.
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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 or receives notice 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 applicable Mortgage Loan
Purchase Agreement (a "Breach"), and 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. The Trustee shall in turn notify the Controlling Class Representative
(if different from the Majority Subordinate Certificateholder and to the extent
known to the Trustee) 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 related Mortgage Loan Seller, not later than ninety (90) days
from receipt of such written request (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, not later than ninety (90) days after any party
to this Agreement discovering such Document Defect or Breach) (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) if the affected Mortgage Loan is a Majority Mortgage Loan, substitute a
Qualified Substitute Mortgage Loan for such affected Majority 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; provided,
however, that if such Document Defect or Breach is capable of being cured but
not within such ninety (90) day period, such Document Defect or Breach does not
relate to the Mortgage Loan not being treated as a "qualified mortgage" within
the meaning of the REMIC Provisions, and the Mortgage Loan Seller has commenced
and is diligently proceeding with the cure of such Document Defect or Breach
within such ninety (90) day period, such Mortgage Loan Seller shall have an
additional ninety (90) days to complete such cure (or, failing such cure, to
repurchase the related Mortgage Loan); and provided, further, with respect to
such additional ninety (90) day period the Mortgage Loan Seller shall have
delivered an Officer's Certificate to the Trustee setting forth the reasons such
Document Defect or Breach is not capable of being cured within the initial
ninety (90) day period and what actions the Mortgage Loan Seller is pursuing in
connection with the cure thereof and stating that the Mortgage Loan Seller
anticipates such Document Defect or Breach will be cured within the additional
ninety (90) day period. The related Mortgage Loan Seller may not substitute a
Qualified Substitute Mortgage Loan for a Heilig/Petsmart Mortgage Loan. For a
period of two years from the Closing Date, so long as there remains any Mortgage
File as to which there is any uncured Document Defect
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and so long as the related Mortgage Loan Seller shall provide the Officer's
Certificate pursuant to Section 3(c) of the related 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.
(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 as are provided to it, in
each case without recourse, representation or warranty, as shall be necessary to
vest in the appropriate 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 appropriate
Mortgage Loan Seller, upon delivery to each of them of a receipt executed by
such 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 appropriate 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.
(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 II. No
substitution of a Qualified Substitute Mortgage Loan for a deleted Majority
Mortgage Loan shall be permitted under this Agreement if after such
substitution, the aggregate of
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the Stated Principal Balances of all Qualified Substitute Mortgage Loans which
have been substituted for deleted Majority Mortgage Loans exceeds 10% of the
aggregate Cut-off Date Balance of all the Majority 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, REMIC I
or REMIC II and will (to the extent received by the Master Servicer) be remitted
by the Master Servicer to the appropriate Mortgage Loan Seller promptly
following receipt.
(d) Each 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.
(e) The Trustee with the cooperation of the Special Servicer
(in the case of Specially Serviced Mortgage Loans) shall, for the benefit of the
Certificateholders, enforce the obligations of the Mortgage Loan Seller under
Section 3 of each Mortgage Loan Purchase Agreement.
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
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and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in
equity or at law.
(v) The Depositor is not in violation of, and its
execution and delivery of this Agreement and its performance
and compliance with the terms of this Agreement will not
constitute a violation of, any law, any order or decree of any
court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority,
which violation, in the Depositor's good faith and reasonable
judgment, is likely to affect materially and adversely either
the ability of the Depositor to perform its obligations under
this Agreement or the financial condition of the Depositor.
(vi) The transfer of the Mortgage Loans to the
Trustee as contemplated herein requires no regulatory
approval, other than any such approvals as have been obtained,
and is not subject to any bulk transfer or similar law in
effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the
Depositor's knowledge, threatened against the Depositor 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) 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.
(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 representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties.
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SECTION 2.05. Execution, Authentication and Delivery of Class
Q and 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 each of the Heilig/Petsmart
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 Q Certificates and the Class R-I
Certificates in authorized denominations. The interests evidenced by the Class
R-I Certificates, together with the REMIC I Senior Regular Interest and the
Class Q Certificates, constitute the entire beneficial ownership of REMIC I. The
rights of the Class R-I Certificateholders, and the rights of the Class Q
Certificateholders and REMIC II (as holder of the REMIC I Senior Regular
Interest) 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 Q Certificates and
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 Senior Regular Interest;
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 Senior Regular Interest and all of the Majority Mortgage Loans 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 Senior Regular Interest and the Majority
Mortgage Loans 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
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Depositor in and to the REMIC II Regular Interests to the Trustee for the
benefit of the Holders of the Class R-III Certificates and REMIC IV as the
holder of 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 REMIC IV as the holder of
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. Conveyance of REMIC III Regular Interests;
Acceptance of REMIC IV 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
III Regular Interests to the Trustee for the benefit of the respective Holders
of the REMIC IV Certificates. The Trustee acknowledges the assignment to it of
the REMIC III Regular Interests and declares that it holds and will hold the
same in trust for the exclusive use and benefit of all present and future
Holders of the REMIC IV Certificates.
SECTION 2.11. Execution, Authentication and Delivery of REMIC
IV Certificates.
Concurrently with the assignment to it of the REMIC III
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 REMIC IV
Certificates in authorized denominations evidencing the entire beneficial
ownership of REMIC IV. The rights of the holders of the respective Classes of
REMIC IV Certificates to receive distributions from the proceeds of REMIC IV in
respect of their REMIC IV Certificates, and all ownership interests evidenced or
constituted by the respective Classes of REMIC IV Certificates in such
distributions, shall be as set forth in this Agreement.
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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; provided, that the Master
Servicer shall continue to receive payments, make all calculations, and prepare,
or cause to be prepared, all reports required hereunder with respect to the
Specially Serviced Mortgage Loans, except for the reports specified herein as
prepared by the Special Servicer, as if no Servicing Transfer Event had occurred
and with respect to the REO Properties (and the related REO Loans) as if no REO
Acquisition had occurred, and to render such incidental services with respect to
such Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein; provided, further, however, that the Master Servicer shall
not be liable for its failure to comply with such duties insofar as such failure
results from a failure by the Special Servicer to provide sufficient information
to the Master Servicer to comply with such duties or failure by the Special
Servicer to otherwise comply with its obligations hereunder. 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
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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. Unless the same Person acts as both Master Servicer and Special
Servicer, the Master Servicer shall not be responsible for the actions of or
failure to act by the Special Servicer and the Special Servicer shall not be
responsible for the actions of or the failure to act by the Master Servicer.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) Each of the Master Servicer or the Special Servicer shall
undertake reasonable efforts consistent with the Servicing Standard 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; provided, that with respect to the Mortgage Loans
that have Anticipated Repayment Dates, so long as the related Mortgagor is in
compliance with each provision of the related Mortgage Loan documents, the
Master Servicer and Special Servicer (including the Special Servicer in its
capacity as a Certificateholder), shall not take any enforcement action with
respect to the failure of the related Mortgagor to make any payment of
Additional Interest or principal in excess of the principal component of the
constant Periodic Payment, other than requests for collection, until the
maturity date of the related Mortgage Loan; provided, that the Master Servicer
or Special Servicer, as the case may be, may take action to enforce the Trust
Fund's right to apply excess cash flow to principal in accordance with the terms
of the Mortgage Loan documents. 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
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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, and exclusive of any portion thereof that constitutes
Additional Interest; 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 (other than Additional
Interest), including, without limitation, Prepayment Premiums, Yield Maintenance
Charges and Penalty Interest; fifth, as a recovery of any remaining principal of
such Mortgage Loan to the extent of its entire remaining unpaid principal
balance; and sixth, with respect to any ARD Loan after its Anticipated Repayment
Date, as a recovery of any unpaid Additional Interest. 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 exclusive of any portion thereof that constitutes
Additional Interest; 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; and fourth, with respect to any ARD Loan
after its Anticipated Repayment Date, as a recovery of any unpaid Additional
Interest. 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 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 and RVI Policy Insurer that (i) both
the Master Servicer and the Special Servicer shall be sent notices under each
Lease Enhancement Policy Insurer and RVI Policy and (ii) Norwest Bank Minnesota,
National Association, as trustee for the registered holders of the First Union
National Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2000-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, RVI Policy or Secured Creditor
Impaired Property Policy, the Master Servicer shall notify the Special Servicer
thereof within three Business Days after learning of such event. With respect to
each Lease Enhancement Policy, RVI Policy and Secured Creditor Impaired Property
Policy, the Master Servicer and the Special Servicer shall each review and
familiarize itself with the terms and conditions relating to enforcement of
claims and shall monitor the dates by which any claim must be made or any action
must be taken under such policy. The Special Servicer shall prepare and file a
"proof of
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loss" form with the Lease Enhancement Policy Insurer, the RVI Policy Insurer or
the Secured Creditor Impaired Property 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 shall 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 Lease Enhancement Policy Insurer, RVI Policy
Insurer, or Secured Creditor Impaired Property Policy Insurer or performing any
actions required under each policy) under each RVI Policy, Lease Enhancement
Policy and Secured Creditor Impaired Property Policy to realize the full value
of such RVI Policy, Lease Enhancement Policy and Secured Creditor Impaired
Property 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, RVI Policy and Secured Creditor Impaired Property 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, the Trustee and
the Rating Agencies 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 Master
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 60 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.
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, and shall administer
such accounts in accordance with the terms of the Mortgage Loan documents. 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
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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; (vi) withdraw amounts
deposited in error or (vii) 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 and in accordance with the terms of the related
Mortgage Loan documents. 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, REMIC IV or
the Grantor Trust.
(b) The Master Servicer (or the Special Servicer for
Specially Serviced Mortgage Loans and REO Loans) shall (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 (at the direction of the Special Servicer
for Specially Serviced Mortgage Loans and REO Loans) 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 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,
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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 is required under any provision of this
Agreement (including, but not limited to, this Section 3.03(c)) to make a
Servicing Advance, but does not do 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, give
written notice of such failure to the Master Servicer. If such Servicing Advance
is not made by the Master 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 failure by the Master Servicer to make a Servicing Advance hereunder shall
constitute an Event of Default by the Master Servicer 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
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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 the related
Mortgage Loan or REO Property during the same Collection Period in which such
Servicing Advance is reimbursed (the use of such late payment charges and
Penalty Interest to be allocated between the Master Servicer and the Special
Servicer on a pro rata basis based on the amount of late payment charges and
Penalty Interest that the Master Servicer and the Special Servicer have received
as additional servicing compensation during such period); 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 or
on behalf of 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 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,
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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 if permitted under the related Mortgage Loan
documents. 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, REMIC IV or the Grantor Trust. 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.
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 appropriate Mortgage
Loan Seller or its designee, with negotiable instruments endorsed as necessary
and appropriate without recourse), other than amounts received from Mortgagors
which are to be used to purchase defeasance collateral, 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, including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage
Loans, including Additional Interest and Penalty Interest;
(iii) all Prepayment Premiums and Yield Maintenance
Charges;
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(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 payment charges (to the extent not applied to pay
interest on Advances as provided in Sections 3.03(d) or 4.03(d) 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.
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 (net of any reimbursable expenses incurred by the Special Servicer) to
or at the direction of 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
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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 (I)(a)(ii), (I)(b)(ii)(B) and (II)
of the definition thereof) and the Heilig/Petsmart 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, Yield Maintenance Charges
and/or Additional Interest 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) [Intentionally Omitted];
(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.
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.
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(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 Workout Fee or Principal Recovery Fee) received in
respect of the particular Mortgage Loan or REO Loan as to
which such P&I Advance was made;
(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
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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;
(v) to pay the Special Servicer (or, if applicable, a
predecessor Special Servicer) earned and unpaid Workout Fees
or 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 or Liquidation Proceeds)
or such REO Loan (whether in the form of REO Revenues or
Liquidation Proceeds) that are allocable as a recovery of
principal or interest thereon (provided that no Principal
Recovery Fee shall be payable out of (i) Insurance Proceeds
and (ii) any Liquidation Proceeds received in connection with
the purchase of any Mortgage Loan or REO Property by the
applicable Mortgage Loan Seller pursuant to the respective
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;
(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;
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(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 the related Mortgage Loan or REO Loan, during
the same Collection Period in which such Advance is reimbursed
(the use of such late payment charges and Penalty Interest to
be allocated between the Master Servicer and the Special
Servicer on a pro rata basis based on the amount of late
payment charges and Penalty Interest that the Master Servicer
and the Special Servicer have received as additional servicing
compensation during such period), 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 incurred by (A) the
Trust Fund pursuant to Sections 2.01(b), 3.02(d) and 3.09(c)
and (B) the Special Servicer pursuant to Section 3.12(a);
(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
payment 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,
members, managers, 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) 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 Servicer or the Special Servicer that protects or
is in
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furtherance of the rights and interests of Certificateholders,
and (D) the cost of recording this Agreement in accordance
with Section 11.02(a);
(xiv) to pay itself, the Special Servicer, the
appropriate 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);
(xvi) to withdraw any amounts deposited in error;
(xvii) to withdraw the Swap Fee payable with respect to
any Semi-Annual Mortgage Loan, such withdrawal to be limited
to amounts received in respect of the related Periodic
Payment;
(xviii) to withdraw any other amounts that this
Agreement expressly provides may be withdrawn from the
Certificate Account; and
(xix) 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) or 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) or 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.
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(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;
(ii) to pay the Trustee or any of its 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) [Intentionally Omitted];
(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.
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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 Certificate 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 only in one or
more Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, no later than the Business Day immediately preceding
the next succeeding date on which such funds are required to be withdrawn from
such account pursuant to this Agreement. Funds held in the Distribution Account
shall remain uninvested. 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 (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. 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 or the Interest Reserve 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), 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
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(y) demand payment of all amounts due thereunder promptly
upon determination by the Master Servicer or the Special Servicer, as the case
may be, that such Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the Investment Account.
(b) Whether or not the Master Servicer directs the investment
of funds in any of the Servicing Accounts, the Reserve Accounts, the Certificate
Account, or the Interest Reserve 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 Mortgage 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), 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
Interest Reserve Account and the Certificate Account, excluding any accounts
containing amounts invested solely for the benefit of, and at the direction of,
the Mortgagor under the terms of the Mortgage Loan or applicable law) 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, provided, that neither the
Master Servicer nor the Special Servicer shall be required to deposit any loss
on an investment of funds in an Investment Account if such loss is incurred
solely as a result of the insolvency of the federal or state chartered
depository institution or trust company that holds such Investment Account, so
long as such depository institution or trust company satisfied the
qualifications set forth in the definition of Eligible Account at the time such
investment was made.
(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
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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 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 and required insurance
coverage obtained by the Master Servicer shall be from Qualified Insurers. The
cost of any such insurance coverage obtained by either the Master Servicer or
the Special Servicer shall be a Servicing Advance to be paid by the Master
Servicer pursuant to Section 3.03. 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. 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 Trustee or the Master
Servicer on behalf of the Trustee (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.
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(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 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 a fidelity bond with Qualified Insurers, such fidelity bond to be in such
form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is
greater, 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). 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, 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 cause the qualification, downgrade or withdrawal of
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
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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.
(a) With respect to all Mortgage Loans other than Specially
Serviced Mortgage Loans, the Master Servicer or, in the case of a Specially
Serviced Mortgage Loan, 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 Master Servicer (with the written consent of
the Special Servicer) or the Special Servicer, as applicable, has determined,
consistent with the Servicing Standard, that waiver of such restrictions would
be in accordance with the Servicing Standard. Promptly after the Master Servicer
(with the written consent of the Special Servicer) or the Special Servicer, as
applicable, has made any such determination, the Master Servicer or the Special
Servicer shall deliver to the Trustee, the Rating Agencies and each other an
Officers' Certificate setting forth the basis for such determination. The Master
Servicer or the Special Servicer shall not exercise (and the Special Servicer
shall not consent to) any such waiver in respect of a due-on-encumbrance
provision of any Mortgage Loan 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 Master Servicer or the Special Servicer shall not exercise (and the Special
Servicer shall not consent to) any such waiver in respect of a due-on-sale
provision of any Mortgage Loan for which the aggregate of the Stated Principal
Balance of such Mortgage Loan and the Stated 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, are equal to
or greater than 5% of the aggregate Stated Principal Balance of all Mortgage
Loans or $20,000,000 without receiving the prior written confirmation from the
Rating Agencies that such action would not result in a downgrading,
qualification or withdrawal of any of the ratings then assigned to the
Certificates. In the event that such Mortgage Loan does not meet the criteria
set forth in the prior sentence, and the Mortgage Loan documents contain a
requirement for Rating Agency approval, the Master Servicer or the Special
Servicer may waive such requirement without Rating Agency approval in accordance
with the Servicing Standards.
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(b) Notwithstanding any other provisions of this Section 3.08,
the Master Servicer (without the Special Servicer's consent) or the Special
Servicer, as applicable, may grant, without any Rating Agency confirmation as
provided in paragraph (a) above, a Mortgagor's request for consent to subject
the related Mortgaged Property to an easement or right-of-way for utilities,
access, parking, public improvements or another purpose, and may consent to
subordination of the related Mortgage Loan to such easement or right-of-way
provided the Master Servicer or the Special Servicer, as applicable, shall have
determined in accordance with the Servicing Standards that such easement or
right-of-way shall not materially interfere with the then-current use of the
related Mortgaged Property, or the security intended to be provided by such
Mortgage, the related Mortgagor's ability to repay the Mortgage Loan, or
materially or adversely affect the value of such Mortgaged property or cause the
Mortgage Loan to cease to be a qualified mortgage loan for REMIC purposes.
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 (or with
respect to any Mortgage Loan with an outstanding principal balance less than
$1,000,000, an internal valuation performed by the Special Servicer) within 60
days of a Mortgage Loan becoming a Required Appraisal Mortgage Loan (unless an
appraisal meeting the requirements of a Required
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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 (or with respect to any Mortgage Loan with an
outstanding principal balance less than $1,000,000, an internal valuation
performed by the Special Servicer) 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 (or letter update or internal valuation) to the Master
Servicer and the Trustee within 10 Business Days of obtaining such Required
Appraisal (or letter update or internal valuation). 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).
(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 under the REMIC
Provisions or cause any of REMIC I, REMIC II, REMIC III or
REMIC IV 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 taking into
account the coverage provided by the Secured Creditor Impaired Property Policy,
and based on an Environmental Assessment of such Mortgaged Property performed by
an Independent Person who regularly conducts Environmental Assessments and
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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 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 be at the expense of the Trust Fund; 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 be at the expense of the Trust Fund.
(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 and there is no breach
of a representation or warranty requiring repurchase under the Mortgage Loan
Purchase Agreement, the Special Servicer shall take such action as is in
accordance with the Servicing Standard (other than proceeding against the
Mortgaged Property, unless after evaluating the coverage of the Secured Creditor
Impaired Property Policy, if any, the Special Servicer determines that
proceeding against the Mortgaged Property is in accordance with the Servicing
Standard) 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
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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
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
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 reports of foreclosures and abandonments of any Mortgaged Property
and the information returns relating to any Mortgaged Property required by
Sections 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 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, the Controlling Class Representative 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.
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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
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
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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 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
payment charges, Penalty Interest, assumption application fees, modification
fees for Mortgage Loan modifications made by the Master Servicer 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, (ii) fifty percent (50%) of any assumption fee to the extent
actually paid by a Mortgagor with respect to any Mortgage Loan, other than a
Specially Serviced Mortgage Loan, and (iii) fifty percent (50%) of any
assumption fee on any assumption of a Specially Serviced Mortgage Loan if the
only Servicing Transfer Event is the transfer of the related Mortgaged Property
by the Mortgagor without the required consents may be
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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 and the
Interest Reserve 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. The Master Servicer shall not
waive or agree to any discount of any portion of assumption fees to which the
Special Servicer is entitled.
(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 at
the Special Servicing Fee Rate and on the same principal amount respecting which
the related interest payment due on such Specially Serviced 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).
As further compensation for its activities hereunder, the
Special Servicer shall be entitled to receive the Workout Fee with respect to
each Corrected Mortgage Loan, so long as such loan remains a Corrected Mortgage
Loan. As to each Corrected Mortgage Loan, the Workout Fee shall be payable out
of, and shall be calculated by application of the Workout Fee Rate to, each
collection of interest (other than Additional Interest and Penalty Interest) and
principal received on such Mortgage Loan for so long as it remains a Corrected
Mortgage Loan (net of any portion of such collection payable or reimbursable to
the Master Servicer, the Special Servicer or the Trustee for any related unpaid
or unreimbursed Master Servicing Fees and/or Advances) received on such Mortgage
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Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with
respect to any Corrected Mortgage Loan will cease to be payable if a Servicing
Transfer Event occurs with respect thereto or if the related Mortgaged Property
becomes an REO Property; provided that a new Workout Fee would become payable if
and when such Mortgage Loan again became a Corrected Mortgage Loan. If the
Special Servicer is terminated or resigns in accordance with Section 6.04, it
shall no longer have the right to receive any Workout Fees payable in respect of
Mortgage Loans that became Corrected Mortgage Loans during the period that it
acted as Special Servicer.
In addition, with respect to each Specially Serviced Mortgage
Loan and REO Loan (or Qualified Substitute Mortgage Loan substituted in lieu
thereof), the Special Servicer shall be entitled to the Principal Recovery Fee
payable out of, and calculated by application of the Principal Recovery Fee Rate
to, all amounts (whether in the form of payments of 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, interest and expenses 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 (i) Insurance Proceeds and (ii)
Liquidation Proceeds resulting from, the purchase of any Mortgage Loan or REO
Property by the applicable Mortgage Loan Seller pursuant to the respective
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; and provided further that no Principal Recovery Fee shall be
payable to the extent a Workout Fee is payable concerning the Liquidation
Proceeds.
The Special Servicer's right to receive the Special Servicing
Fee, the Workout 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
payment charges, Penalty Interest and assumption application fees received on or
with respect to Specially Serviced Mortgage Loans actually collected that
accrued during the time that the related Mortgage Loan was a Specially Serviced
Mortgage Loans, (ii) one-hundred percent (100%) (or fifty percent (50%) if
Section 3.11(b)(iii) applies) of assumption fees collected on all Specially
Serviced Mortgage Loans, (iii) fifty percent (50%) of assumption fees collected
on any Mortgage Loan other than a Specially Serviced Mortgage Loan and (iv)
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 Servicer by the Master Servicer and
shall not be required to be deposited in the Certificate Account provided that
the Special 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 for the cost of inspections in
accordance with Section 3.12(a) or to pay
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interest on Advances in respect of the related Mortgage Loan as provided in
Sections 3.03(d) and 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 general and administrative expenses incurred by it in
connection with its servicing activities hereunder, and the Special Servicer
shall not be entitled to reimbursement therefor except 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
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be
performed a physical inspection of a Mortgaged Property as soon as practicable
after a related Mortgage Loan (i) becomes a Specially Serviced Mortgage Loan or
(ii) the related Debt Service Coverage Ratio set forth in the Comparative
Financial Status Report is below 1.0x, provided that such expense shall be
reimbursable first out of Penalty Interest and late payment charges otherwise
payable to the Special Servicer and received in the Collection Period during
which such inspection related expenses were incurred, then as an Additional
Trust Fund Expense. 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 2000. 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 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 visible 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, subject to Section 3.15, 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. Upon written request and at the expense of the requesting
party, the Trustee shall deliver copies of any such inspection reports to
Certificateholders and Certificate Owners. 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 obtains the approval of the
Master Servicer prior to such inspection, and provides a copy of such inspection
to the Master Servicer; and provided further that the Master Servicer and the
Special Servicer shall not
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both inspect a Mortgage Loan that is not a Specially Serviced Mortgage Loan in
the same calendar year. 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 CMSA Property File Report; and (ii) a Comparative Financial Status
Report. Not later than 5:00 p.m. (New York City time) on the first 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
clause (iv) below, only with respect to Specially Serviced Mortgage Loans)
providing the required information as of such Determination Date: (i) a
Historical Liquidation Report; (ii) a Historical Loan Modification Report; (iii)
an REO Status Report, and (iv) a Delinquent Loan Status 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 Liquidation Report and REO Status Report
received from the Special Servicer pursuant to Section 3.12(b); (B) a CMSA
Property File Report and a Comparative Financial Status Report, each with the
required 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 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. Not later than 4:00 p.m.
(New York City time) on the third Business Day of each calendar month, the
Master Servicer shall deliver or cause to be delivered to the Trustee (in
electronic format acceptable to the Master Servicer and the Trustee) an Interim
Delinquent Loan Status Report.
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(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 CMSA 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 deliver copies of the
operating statements and rent rolls received or obtained by it to the Rating
Agencies, the Trustee, the Special Servicer or the Controlling Class
Representative in each case (other than the Rating Agencies and the Controlling
Class Representative which shall be sent copies within 30 days following the
Master Servicer's receipt) 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, 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).
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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, but in no event less frequently than annually by June 30th of each
year. 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, 2001, 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 as a REMIC under the REMIC
Provisions or of the Grantor Trust as a "Grantor Trust" for income tax purposes
under the Grantor Trust 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, 2001,
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 a statement to the Trustee,
Underwriters, Rating Agencies, Depositor and, in the case of the Special
Servicer, to the
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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 (b) and (i) below and to the extent any other items are in its
possession) shall make available at their respective offices primarily
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 documents which constitute part of the Mortgage Files, which will be
maintained at its offices in Minnesota), during normal business hours, or send
to the requesting party, such party having been certified to the Trustee or the
Master Servicer as applicable in accordance with (a) and (b) in the following
paragraph, as appropriate, at the expense of such requesting party (unless
otherwise provided in this Agreement), 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
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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
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, the Special Servicer or the Trustee, as the case may be, upon request
and shall be provided to any of the Rating Agencies at no cost pursuant to their
reasonable requests.
In connection with providing access to or copies of the items
described in the preceding paragraph pursuant to this Section 3.15, the Trustee
or the Master Servicer, as applicable, 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 or the Master Servicer, as applicable)
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 or the Master Servicer, as
applicable) 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 or the Master Servicer, as applicable, pursuant to
this Section 3.15 that has previously been made available without a password via
the Trustee's or the Master Servicer's, as applicable, Internet Website or has
previously been filed with the Commission, and the Trustee or the Master
Servicer, as applicable, 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 without a password 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, the Federal Reserve Board 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
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or to the extent such information is subject to a privilege under applicable law
to be asserted on behalf of the 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) The Trustee shall, and the Master Servicer may but is not
required to, make available each month to any interested party (i) the
Distribution Date Statement via their respective Internet Websites and, with
respect to the Trustee only, fax-on-demand service and (ii) as a convenience for
interested parties this Agreement on their respective Internet Websites. In
addition, the Trustee shall make available each month, on each Distribution
Date, the Unrestricted Servicer Reports, the CMSA Loan File Report, the CMSA
loan setup file, the CMSA Bond File Report and the CMSA Collateral File Report
to any interested party on its Internet Website. The Trustee shall make
available each month, on each Distribution Date, (i) the Restricted Servicer
Reports, and (ii) the CMSA Property File Report to any Privileged Person via the
Trustee's Internet Website with the use of a password (or other comparable
restricted access mechanism) provided by the Trustee. The Trustee shall make
available each month, on the fourth Business Day of each calendar month, the
Interim Delinquent Loan Status Report to any interested party on its Internet
Website.
The Master Servicer may, but is not required to, make
available each month via its Internet Website (i) to any interested party, the
Unrestricted Servicer Reports, the CMSA loan setup file and the CMSA Loan File
Report, and (ii) to any Privileged Person, with the use of a password provided
by the Master Servicer, the Restricted Servicer Reports and the CMSA Property
File Report. Any (y) Restricted Servicer Report or Unrestricted Servicer Report
(other than the Interim Delinquent Loan Status Report) that is not available on
the Master Servicer's Internet Website as described in the immediately preceding
sentence by 5:00 p.m. (New York City time) on the related Distribution Date and
(z) Interim Delinquent Loan Status Report that is not available on the Master
Servicer's Internet Website as described in the immediately preceding sentence
by 5:00 p.m. (New York City time) on the third Business Day of each calendar
month, shall be provided (in electronic format or, if electronic mail is
unavailable, by facsimile) by the Master Servicer, upon request, to any Person
otherwise entitled to access to such report on the Master Servicer's Internet
Website.
In connection with providing access to the Trustee's Internet
Website or the Master Servicer's Internet Website, the Trustee or the Master
Servicer, as applicable, may require registration and the acceptance of a
disclaimer.
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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.
(c) From and after the later to occur of (i) the expiration of
ninety days after the Closing Date and (ii) the date on which the Trustee
receives notice from the Depositor that the last unsold allotment of
Certificates (if any) has been sold by the Underwriters, the Trustee shall also
make available to any Privileged Person, with the use of a password (or other
comparable restricted access mechanism) provided by the Trustee to such
Privileged Person, the Investor Q&A Forum. The "Investor Q&A Forum" shall be a
service available on a portion of the Trustee's Internet Website. The structure,
form, legends and links of such portion of the Trustee's Internet Website shall
be subject to the approval of the Depositor prior to implementation of the
Investor Q&A Forum and may not be altered, changed or modified without the
approval of the Depositor. The Investor Q&A Forum shall permit Privileged
Persons with the use of a password (or other comparable restricted access
mechanism) to (i) submit questions to the Trustee via e-mail, which questions
(A) relate to the Mortgage Loans or the Mortgaged Properties and (B) are
requesting information that is of the type included in the reports provided by
the Master Servicer or the Special Servicer pursuant to Section 3.12 ("Investor
Inquiries"), and (ii) view Investor Inquiries that have been previously
submitted and answered, together with the answers thereto. Upon receipt of a
submission from a user, the Trustee shall forward the Investor Inquiry to either
the Master Servicer (if such Investor Inquiry relates to a Mortgage Loan that is
not a Specially Serviced Mortgage Loan) or the Special Servicer (if such
Investor Inquiry relates to a Specially Serviced Mortgage Loan) within four
Business Hours of receipt thereof. Within five Business Days following receipt
of an Investor Inquiry from the Trustee by the Master Servicer (with respect to
Investor Inquiries that relate to Mortgage Loans that are not Specially Serviced
Mortgage Loans) or within five Business Days following receipt of an Investor
Inquiry from the Trustee by the Special Servicer (with respect to Investor
Inquiries that relate to Specially Serviced Mortgage Loans), the Master Servicer
or the Special Servicer, as applicable, unless it determines not to answer such
Investor Inquiry as provided below, shall reply to the Investor Inquiry with (A)
the answer to such Investor Inquiry, or (B) if such Investor Inquiry cannot
reasonably be answered within such five Business Days, such longer period of
time as is necessary to answer such Investor Inquiry, provided such longer
period of time shall be commercially reasonable (which it shall then be required
to adhere to). Upon receipt of any such answer from the Master Servicer or the
Special Servicer, the Trustee shall post (within four Business Hours of receipt
of such answer) such Investor Inquiry and the related answer (or a statement
concerning the additional time necessary until such answer shall be made
available) to the Trustee's Website to be made available to Privileged Persons
with the use of a password (or other comparable restricted access mechanism). If
the Master Servicer or the Special Servicer determines, in its
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respective sole discretion, that (i) any Investor Inquiry is not of a type
described above, (ii) answering any Investor Inquiry would not be in the best
interests of the Trust Fund and/or the Certificateholders, (iii) answering any
Investor Inquiry would be in violation of applicable law or the applicable
Mortgage Loan documents, or (iv) answering any Investor Inquiry is otherwise,
for any reason, not advisable to answer, it shall not be required to answer such
Investor Inquiry, and shall promptly notify the Trustee, who shall notify the
Person who submitted such Investor Inquiry. Any notice by the Trustee to the
Person who submitted an Investor Inquiry that the Master Servicer or the Special
Servicer, as applicable, has declined to answer such Investor Inquiry shall
include the following statement: "Because the Pooling and Servicing Agreement
provides that the Master Servicer and the Special Servicer shall not answer an
Investor Inquiry if it determines, in its respective sole discretion, that (i)
any Investor Inquiry is not of a type described in the Pooling and Servicing
Agreement, (ii) answering any Investor Inquiry would not be in the best
interests of the Trust Fund and/or the Certificateholders, (iii) answering any
Investor Inquiry would be in violation of applicable law or the applicable
Mortgage Loan documents, or (iv) answering any Investor Inquiry is otherwise,
for any reason, not advisable to answer, no inference should be drawn from the
fact that the Master Servicer or the Special Servicer has declined to answer the
Investor Inquiry."
The Master Servicer and the Special Servicer shall not be
required to confirm, represent or warrant the accuracy or completeness of any
other Person's information or report included in any communication from the
Master Servicer or the Special Servicer under this Agreement. The Trustee shall
not be liable for the dissemination of information in accordance with this
Section 3.15(c). The Trustee makes no representations or warranties as to the
accuracy or completeness of any report, document, question, answer, or other
information made available on the Trustee's Website and assumes no
responsibility therefor. In addition, the Trustee, the Master Servicer and the
Special Servicer may disclaim responsibility for any information distributed by
the Trustee, the Master Servicer or the Special Servicer, respectively, for
which it is not the original source.
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 or REMIC II, as applicable, 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 or
REMIC II, as applicable, 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 or cause any of REMIC I, REMIC II, REMIC III or
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REMIC IV 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 by the Master
Servicer.
(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 within 2 Business Days of
receipt. Funds in the REO Account may be invested in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall be entitled to make
withdrawals from the REO Account to pay itself, as additional servicing
compensation in accordance with Section 3.11(d), interest and investment income
earned in respect of amounts held in the REO Account as provided in Section
3.06(b) (but only to the extent of the Net Investment Earnings with respect to
the REO Account for any Collection Period). The Special Servicer shall give
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 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).
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(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) 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
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
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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 3.17(a),
either result in the receipt by REMIC I, REMIC II, REMIC III or REMIC IV 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
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(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 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
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(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) and 9.01.
(b) Subject to Section 2.03(a), if the Special Servicer has
determined in good faith, and after making reasonable efforts to specially
service such Defaulted Mortgage Loan, 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.
(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
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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 five 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 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
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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 coverage of any Secured
Creditor Impaired Property Policy, 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
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.
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(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 0.025% 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.
(c) Not later than 4:00 pm (New York City time) on the third
Business Day after each Determination Date, the Master Servicer shall deliver to
the Trustee, the Special Servicer and the Rating Agencies a report stating with
respect to each Credit Lease Loan as of a date no earlier than such
Determination Date: (i) all publicly available ratings of Standard & Poor's and
Fitch for the related Tenant or guarantor under the Guaranty as of the Closing
Date, the immediately preceding Determination Date (if any) and the date of such
report; and (ii) whether the related Tenant or guarantor under the Guaranty has
been placed on a "credit watch."
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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 Sections 3.08(b) and 6.11, the Master Servicer (to the extent
provided in Section 3.20(i) below) and 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; or
(iv) if such Mortgage Loan is equal to or in excess of
5% of the then aggregate current principal balances of all
Mortgage Loans or $20,000,000, permit the transfer or
transfers of equity interests in the borrower or any equity
owner of the borrower 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 or a transfer of voting
control in the borrower of an equity owner of the borrower
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;
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(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
(vi) impair the value or enforceability of a Lease
Enhancement Policy, a Secured Creditor Impaired Property
Policy or an 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 Periodic 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 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
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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 (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 20 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.
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(g) The Special Servicer shall notify the Master Servicer, any
related Sub- Servicers, the Trustee and the Rating Agencies, 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 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) The Master Servicer shall not permit defeasance of any
Mortgage Loan (x) on or before the earliest date on which defeasance is
permitted under the terms of such Mortgage Loan, or (y) to the extent
inconsistent with the terms of such Mortgage Loan. The Master Servicer will not
permit defeasance of any Mortgage Loan unless (i) the defeasance collateral
consists of U.S. Treasury obligations, (ii) the Master Servicer has determined
that the defeasance will not result in an Adverse REMIC Event (provided that the
Master Servicer shall be entitled to rely conclusively on an Opinion of Counsel
to that effect), (iii) the Master Servicer has notified the Rating Agencies,
(iv) each Rating Agency has confirmed that such defeasance will not result in
the qualification, downgrade or withdrawal of the rating then assigned to any
Class of Certificates to which a rating has been assigned by either Rating
Agency, (v) the Master Servicer has requested and received from the related
Mortgagor (A) an Opinion of Counsel generally to the effect that the Trustee
will have a perfected, first priority security interest in such defeasance
collateral and (B) written confirmation from a firm of Independent accountants
stating that payments made on such defeasance collateral in accordance with the
terms thereof will be sufficient to pay the subject Mortgage Loan in full on or
before its Stated Maturity Date and in accordance with the Periodic Payment (or,
in the case of an ARD Loan, on or before its Anticipated Repayment Date) and to
timely pay each Periodic Payment scheduled to be due prior thereto but after the
defeasance, and (vi) a single purpose entity (as defined below) is designated to
assume the Mortgage Loan and own the defeasance collateral; provided that, if
under the terms of the related Mortgage Loan documents, the related Mortgagor
delivers cash to purchase the defeasance collateral rather than the defeasance
collateral itself, the Master Servicer shall purchase the U.S. Treasury
obligations contemplated by the related Mortgage Loan documents. Subsequent to
the second anniversary of the Closing Date, to the extent that the Master
Servicer can, in accordance with the related Mortgage Loan documents, require
defeasance of any Mortgage Loan in lieu of accepting a prepayment of principal
thereunder, including a prepayment of principal accompanied by a Prepayment
Premium or Yield Maintenance Charge, the Master Servicer shall, to the extent it
is consistent with the Servicing Standard, require such defeasance, provided
that the conditions set forth in clauses (i) through (vi) of the preceding
sentence have been satisfied. Any customary and reasonable out-of-pocket expense
incurred by the Master Servicer pursuant to this Section 3.20(h) shall be paid
by the Mortgagor of the defeased Mortgage Loan pursuant to the related Mortgage,
Mortgage Note or other pertinent document, if so allowed by the terms of such
documents, and otherwise such expenses shall be recoverable as a Servicing
Advance. Notwithstanding the foregoing, if at any time, a court with
jurisdiction in the matter shall hold that the related Mortgagor may obtain a
release of the subject Mortgaged Property but is not
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obligated to deliver the full amount of the defeasance collateral contemplated
by the related Mortgage Loan documents (or cash sufficient to purchase such
defeasance collateral), then the Master Servicer shall (i) if consistent with
the related Mortgage Loan documents, refuse to allow the defeasance of the
Mortgage Loan or (ii) if the Master Servicer cannot so refuse and if the related
Mortgagor has delivered cash to purchase the defeasance collateral, the Master
Servicer shall either (A) buy such defeasance collateral or (B) prepay the
Mortgage Loan, in either case, in accordance with the Servicing Standard. For
purposes of this paragraph, a "single purpose entity" shall mean a Person, other
than an individual, whose organization documents provide as follows: it is
formed solely for the purpose of owning and operating a single property,
assuming a Mortgage Loan and owning and pledging Defeasance Collateral; it may
not engage in any business unrelated to such property and the financing thereof;
it does not have and may not own any assets other than those related to its
interest in the property or the financing thereof and may not incur any
indebtedness other than as permitted by the related Mortgage; it shall maintain
its own books, records and accounts, in each case which are separate and apart
from the books, records and accounts of any other person; it shall hold regular
meetings, as appropriate, to conduct its business, and shall observe all
entity-level formalities and record keeping; it shall conduct business in its
own name and use separate stationery, invoices and checks; it may not guarantee
or assume the debts or obligations of any other person; it shall not commingle
its assets or funds with those of any other person; it shall pay its obligations
and expenses from its own funds and allocate and charge reasonably and fairly
any common employees or overhead shared with affiliates; it shall prepare
separate tax returns and financial statements or, if part of a consolidated
group, shall be shown as a separate member of such group; it shall transact
business with affiliates on an arm's length basis pursuant to written
agreements; and it shall hold itself out as being a legal entity, separate and
apart from any other person. The single purpose entity organizational documents
shall provide that any dissolution and winding up or insolvency filing for such
entity requires the unanimous consent of all partners or members, as applicable,
and that such documents may not be amended with respect to the single purpose
entity requirements during the term of the Mortgage Loan.
(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 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;
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(iii) 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);
(iv) 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; and
(v) Approving certain consents with respect to
right-of-ways and easements and consents to subordination of
the related Mortgage Loan to such easements or right-of-ways.
(j) The Special Servicer shall not consent to the
modification, waiver or amendment of a Lease Enhancement Policy, a Secured
Creditor Impaired Property Policy or an 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. The Master Servicer shall not consent to any
modification, waiver or amendment of any Lease Enhancement Policy, Secured
Creditor Impaired Property Policy or RVI 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 payment charges shall
be reduced proportionately based upon the respective amounts that had been
payable thereto out of such Penalty Interest or late payment charges immediately
prior to such waiver.
(l) Notwithstanding anything to the contrary in this
Agreement, neither the Master Servicer nor the Special Servicer, as applicable,
shall take the following action unless it has received prior written
confirmation (the cost of which shall be paid by the related Mortgagor, if so
allowed by the terms of the related loan documents) from the Rating Agencies
that such action will not result in a qualification, downgrade or withdrawal or
any of the ratings assigned by such Rating Agency to the Certificates:
(i) With respect to any Mortgaged Property that secures
a Mortgage Loan with an unpaid principal balance that is at
least equal to five percent (5%) of the then aggregate
principal balance of all Mortgage Loans or $20,000,000, the
giving of any consent, approval or direction regarding the
termination of the related property manager or the designation
of any replacement property manager; and
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(ii) With respect to each Mortgage Loan with an unpaid
principal balance that is equal to or greater than (A) two
percent (2%) of the then aggregate principal balance of all
the Mortgage Loans or (B) $10,000,000 and which is secured by
a Mortgaged Property which is a hospitality property, the
giving of any consent to any change in the franchise
affiliation of such Mortgaged Property.
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, the Master Servicer shall promptly
notify the Trustee, and if the Master Servicer is not also the Special Servicer,
the Master Servicer shall immediately give notice thereof, and shall deliver or
cause to be delivered a copy of the related Mortgage File and 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. Notwithstanding the occurrence of a Servicing
Transfer Event, the Master Servicer shall continue to receive payments on such
Mortgage Loan (including amounts collected by the Special Servicer).
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 Mortgage File and 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.
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(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 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 and negotiations with the related Mortgagor;
(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;
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(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
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 clause (ii) of the
immediately preceding paragraph, 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
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is rejected by a majority of the Certificateholders, (other than for a reason
which violates the Servicing Standard, which shall control), the Special
Servicer shall revise such Asset Status Report as described above in this
Section 3.21(d) 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 or the
majority of the Certificateholders 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, (b) result in the imposition of a "prohibited
transaction" or "prohibited contribution" tax under the REMIC Provisions or (c)
expose the Master Servicer, the Special Servicer, the Depositor, the Mortgage
Loan Sellers, the Trust Fund or the Trustee or the officers and the directors of
each party to claim, suit or liability or (d) expand the scope of the Master
Servicer's, Trustee's or Special Servicer's responsibilities under this
Agreement.
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)) to the extent
applicable (modified to apply to the Sub-Servicer instead of the Master
Servicer); (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 (except with respect only to the Sub-Servicing Agreements in effect
as of the date of this Agreement) may terminate such subservicing agreement
without cause and without payment of any penalty or termination fee (other than
the right of reimbursement and indemnification); (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
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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), 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 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 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
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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) In the event of the resignation, removal or other
termination of First Union National Bank or any successor Master Servicer
hereunder for any reason, the Trustee or other Person succeeding such resigning,
removed or terminated party as Master Servicer, shall elect, with respect to any
Sub-Servicing Agreement existing at the time of such termination: (i) to assume
the rights and obligations of the Master Servicer under such Sub-Servicing
Agreement and continue the sub-servicing arrangements thereunder on the same
terms (including without limitation the obligation to pay the same sub-servicing
fee); (ii) to enter into a new Sub-Servicing Agreement with such Sub-Servicer on
such terms as the Trustee or other successor Master Servicer and such Sub-
Servicer shall mutually agree (it being understood that such Sub-Servicer is
under no obligation to accept any such new Sub-Servicing Agreement or to enter
into or continue negotiations with the Trustee or other successor Master
Servicer in which case the existing Sub-Servicing Agreement shall remain in
effect); or (iii) to terminate the Sub-Servicing Agreement if (but only if) an
Event of Default (as defined in such Sub-Servicing Agreement) has occurred and
is continuing or either of the events set forth in clauses (i) or (ii) of the
following paragraph has occurred and is continuing, in each case without paying
any sub-servicer termination fee.
Each Sub-Servicing Agreement will provide, among other things,
that the Master Servicer and its successors may at its sole option, terminate
any rights the Sub-Servicer may have thereunder with respect to any or all
Mortgage Loans if Fitch (i) reduces the rating assigned to one or more Classes
of the respective Certificates as a result of the sub-servicing of the Mortgage
Loans by the Sub-Servicer, or (ii) advises the Master Servicer or the Trustee in
writing that it will cause a qualification, downgrade or withdrawal of such
rating due to the continued servicing by the Sub- Servicer.
(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.
(f) The Special Servicer shall not enter into a Sub-Servicing
Agreement unless Fitch has confirmed in writing that the execution of such
agreement will not result in a qualification, downgrade, or withdrawal of the
then-current ratings on the outstanding Certificates or such Sub- Servicing
Agreement relates to a Mortgage Loan or Mortgage Loans (along with any Mortgage
Loans previously sub-serviced pursuant to this section) that represents less
than 25% of the outstanding principal balance of all Specially Serviced Mortgage
Loans. The Special Servicer shall
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comply with the terms of each such Sub-Servicing Agreement to the extent the
terms thereof are not inconsistent with the terms of this Agreement and the
Special Servicer's obligations hereunder.
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 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.
(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
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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 limited liability company
validly existing and in good standing under the laws of the
State of Delaware, and the Special Servicer is in compliance
with the laws of each State in which any Mortgaged Property is
located to the extent necessary to perform its obligations
under this Agreement.
(ii) The execution and delivery of this Agreement by the
Special Servicer, and the performance and compliance with the
terms of this Agreement by the Special Servicer, will not
violate the Special Servicer's certificate of incorporation or
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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
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or the consummation of the transactions contemplated by this
Agreement has been obtained and is effective.
(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 (d) (with respect to
the Master Servicer) and Sections (b) and (e) (with respect to the Special
Servicer), 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 represents and warrants that 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 does 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 representation and warranty set forth in this Section 3.23(d) shall
constitute an Event of Default subject to the grace period set forth in Section
7.01(a)(v) and, without limiting any rights or remedies of the Trust Fund, the
Certificateholders or any other party hereto for a breach under any other
section of this Agreement that may arise out of a breach of the representation
and warranty set forth in this Section 3.23(d), termination shall be the sole
remedy against the Master Servicer for the breach of this covenant.
(e) The Special Servicer represents and warrants that any
mission-critical 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 does 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 representation and warranty set forth in this
Section 3.23(e) shall constitute an Event of Default and, without limiting any
rights or remedies of the Trust Fund, the Certificateholders or any other party
hereto for a breach under any other section of this Agreement that may arise out
of a breach of the representation and warranty set forth in this Section
3.23(e), termination shall be the sole remedy against the Special Servicer for
the breach of this covenant.
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(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 Standard & Poor's or (y) if such rating
is downgraded, qualified or withdrawn, with a swap counterparty whose long-term
counterparty rating is at least "A+" by Fitch (if then rated by Fitch) and "A+"
by Standard & Poor's. The cost of maintaining such Semi-Annual Loan Swap
Agreement or equivalent swap agreement shall not be an expense of the Trust Fund
except to the extent of the Swap Fee payable as provided in Section
3.05(a)(xvii).
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) and the second
paragraph of 3.22(d) in all material respects.
SECTION 3.25. Designation of Controlling Class Representative
(a) The Holders (or, in the case of Book-Entry Certificates,
the Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled in accordance with
this Section 3.25 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 6.11) or to replace an existing
Controlling Class Representative. Upon (i) the receipt by the Trustee of written
requests for the selection of a Controlling Class Representative from the
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class, (ii) the resignation or removal of the Person acting as
Controlling Class Representative or (iii) a determination by the Trustee that
the Controlling Class has changed, the Trustee shall promptly notify the
Depositor and the Holders (and, in the case of Book-Entry Certificates, to the
extent actually known to a Responsible Officer of the Trustee or identified
thereto by the Depository or the Depository Participants, the Certificate
Owners) of the Controlling Class that they may select a Controlling Class
Representative. Such notice shall set forth the process for selecting a
Controlling Class Representative, which shall be the designation of the
Controlling Class Representative by the Holders (or Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class by a writing delivered to the Trustee. No appointment of any
Person as a Controlling Class Representative shall be effective until such
Person provides the Trustee with written confirmation of its acceptance of such
appointment, an address and telecopy number for the delivery of notices and
other correspondence and a list of officers or employees of such Person with
whom the parties to this Agreement may deal (including their names, titles, work
addresses and telecopy numbers).
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(b) Within ten (10) Business Days (or as soon thereafter as
practicable if the Controlling Class consists of Book-Entry Certificates) of
receiving a request therefor from the Master Servicer or Special Servicer, the
Trustee shall deliver to the requesting party the identity of the Controlling
Class Representative and a list of each Holder (or, in the case of Book-Entry
Certificates, to the extent actually known to a Responsible Officer of the
Trustee or identified thereto by the Depository or the Depository Participants,
each Certificate Owner) of the Controlling Class, including, in each case, names
and addresses. With respect to such information, the Trustee shall be entitled
to conclusively rely on information provided to it by the Depository, and the
Master Servicer and the Special Servicer shall be entitled to rely on such
information provided by the Trustee with respect to any obligation or right
hereunder that the Master Servicer and the Special Servicer may have to deliver
information or otherwise communicate with the Controlling Class Representative
or any of the Holders (or, if applicable, Certificate Owners) of the Controlling
Class. In addition to the foregoing, within two (2) Business Days of the
selection, resignation or removal of a Controlling Class Representative, the
Trustee shall notify the other parties to this Agreement of such event. The
expenses incurred by the Trustee in connection with obtaining information from
the Depository or Depository Participants with respect to any Book-Entry
Certificate shall be expenses of the Trust Fund payable out of the Collection
Account pursuant to Section 3.05(a).
(c) A Controlling Class Representative may at any time resign
as such by giving written notice to the Trustee and to each Holder (or, in the
case of Book-Entry Certificates, Certificate Owner) of the Controlling Class.
The Holders (or, in the case of Book-Entry Certificates, the Certificate Owners)
of Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class shall be entitled to remove any existing Controlling Class
Representative by giving written notice to the Trustee and to such existing
Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected
pursuant to this Section 3.25 each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Trustee and each other
Holder (or, in the case of Book-Entry Certificates, Certificate Owner) of the
Controlling Class, in writing, of the resignation or removal of such Controlling
Class Representative.
(e) Any and all expenses of the Controlling Class
Representative shall be borne by the Holders (or, if applicable, the Certificate
Owners) of Certificates of the Controlling Class, pro rata according to their
respective Percentage Interests in such Class, and not by the Trust.
Notwithstanding the foregoing, if a claim is made against the Controlling Class
Representative by a Mortgagor with respect to this Agreement or any particular
Mortgage Loan, the Controlling Class Representative shall immediately notify the
Trustee, the Master Servicer and the Special Servicer, whereupon (if the Special
Servicer or the Trust Fund are also named parties to the same action and, in the
sole judgment of the Special Servicer, (i) the Controlling Class Representative
had acted in
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good faith, without negligence or willful misfeasance with regard to the
particular matter, and (ii) there is no potential for the Special Servicer or
the Trust Fund to be an adverse party in such action as regards the Controlling
Class Representative) the Special Servicer on behalf of the Trust Fund shall,
subject to Section 6.03, assume the defense of any such claim against the
Controlling Class Representative. This provision shall survive the termination
of this Agreement and the termination or resignation of the Controlling Class
Representative.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDER
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
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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 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
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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 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 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) 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
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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));
(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) 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));
(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
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) 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));
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(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 such Class of Certificates and
not previously reimbursed;
(xxvi) to distributions of interest to the Holders of
the Class J Certificates, in an amount equal to all
Distributable Certificate Interest in respect of the Class J
Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xxvii) after the Class Principal Balance of the Class H
Certificates has been reduced to zero, to distributions of
principal to the Holders of the Class J Certificates, in an
amount (not to exceed the Class Principal Balance of the Class
J Certificates outstanding immediately prior to such
Distribution Date) equal to the entire 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));
(xxviii) to distributions to the Holders of the Class J
Certificates, in an amount equal to, and in reimbursement of,
all Realized Losses and Additional Trust Fund Expenses, if
any, previously allocated to the Class J Certificates and not
previously reimbursed;
(xxix) to distributions of interest to the Holders of
the Class K Certificates, in an amount equal to all
Distributable Certificate Interest in respect of the Class K
Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xxx) after the Class Principal Balance of the Class J
Certificates has been reduced to zero, to distributions of
principal to the Holders of the Class K Certificates, in an
amount (not to exceed the Class Principal Balance of the Class
K Certificates outstanding immediately prior to such
Distribution Date) equal to the entire 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));
(xxxi) to distributions to the Holders of the Class K
Certificates, in an amount equal to, and in reimbursement of,
all Realized Losses and Additional Trust Fund Expenses, if
any, previously allocated to the Class K Certificates and not
previously reimbursed;
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(xxxii) to distributions of interest to the Holders of
the Class L Certificates, in an amount equal to all
Distributable Certificate Interest in respect of the Class L
Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xxxiii) after the Class Principal Balance of the Class
K Certificates has been reduced to zero, to distributions of
principal to the Holders of the Class L Certificates, in an
amount (not to exceed the Class Principal Balance of the Class
L Certificates outstanding immediately prior to such
Distribution Date) equal to the entire 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));
(xxxiv) to distributions to the Holders of the Class L
Certificates, in an amount equal to, and in reimbursement of,
all Realized Losses and Additional Trust Fund Expenses, if
any, previously allocated to the Class L Certificates and not
previously reimbursed;
(xxxv) to distributions of interest to the Holders of
the Class M Certificates, in an amount equal to all
Distributable Certificate Interest in respect of the Class M
Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xxxvi) after the Class Principal Balance of the Class L
Certificates has been reduced to zero, to distributions of
principal to the Holders of the Class M Certificates, in an
amount (not to exceed the Class Principal Balance of the Class
M Certificates outstanding immediately prior to such
Distribution Date) equal to the entire 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));
(xxxvii) to distributions to the Holders of the Class M
Certificates, in an amount equal to, and in reimbursement of,
all Realized Losses and Additional Trust Fund Expenses, if
any, previously allocated to the Class M Certificates and not
previously reimbursed;
(xxxviii) to distributions of interest to the Holders of
the Class N Certificates, in an amount equal to all
Distributable Certificate Interest in respect of the Class N
Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
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(xxxix) after the Class Principal Balance of the Class M
Certificates has been reduced to zero, to distributions of
principal to the Holders of the Class N Certificates, in an
amount (not to exceed the Class Principal Balance of the Class
N Certificates outstanding immediately prior to such
Distribution Date) equal to the entire 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));
(xl) to distributions to the Holders of the Class N
Certificates, in an amount equal to, and in reimbursement of,
all Realized Losses and Additional Trust Fund Expenses, if
any, previously allocated to the Class N Certificates and not
previously reimbursed;
(xli) 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(h), over (B) the aggregate
distributions deemed made in respect of the Regular
Certificates on such Distribution Date pursuant to clauses (i)
through (xl) above;
(xlii) 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(i), 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);
(xliii) 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 made on the
Majority Mortgage Loans and deemed made in respect of the
REMIC I Senior Regular Interest pursuant to Section 4.01(j)
on such Distribution Date, over (B) the aggregate
distributions deemed made in respect of the REMIC II Regular
Interests on such Distribution Date pursuant to Section
4.01(i); and
(xliv) to make distributions to the Holders of the Class
R-I Certificates, up to an amount equal to the excess, if any,
of (A) the aggregate distributions made on the Heilig/Petsmart
Mortgage Loans on such Distribution Date, over (B) the sum of
(1) the aggregate distributions deemed made in respect of the
REMIC I Senior Regular Interest on such Distribution Date
pursuant to Section 4.01(j) and (2) the aggregate
distributions made in respect of the Class Q Certificates on
such Distribution Date pursuant to Section 4.01(k)(iv), (v)
and (vi).
provided that on each Distribution Date after the aggregate of Class Principal
Balances of each Class of Subordinated 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
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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
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 Charge, as additional yield, as
follows:
(i) With respect to Prepayment Premiums collected on the
Majority Mortgage Loans and Prepayment Premiums collected on
the Heilig/Petsmart Mortgage Loans allocated to the
Heilig/Petsmart Senior Component in accordance with clause
(iii)(A) below:
(A) 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 the
related Distribution Date, up to an amount of such
Prepayment Premiums equal to the product of (x)
the amount of such Prepayment Premiums, multiplied
by (y) a fraction, the numerator of which is equal
to the amount of principal distributable to such
Class of Sequential Pay Certificates on the
related Distribution Date, and the denominator of
which is the Principal Distribution Amount for the
related Distribution Date, multiplied by (z) 25%;
and
(B) Second, to the Holders of the Class IO
Certificates, to the extent of any remaining
portion of such Prepayment Premiums (distributions
pursuant to this sub-clause (i)(B) to be deemed
allocable among the respective Components of the
Class IO Certificates on a pro rata basis in
accordance with the respective amounts of Accrued
Component Interest in
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respect of such Components for the subject
Distribution Date).
(ii) With respect to Yield Maintenance Charges collected
on the Majority Mortgage Loans and Yield Maintenance Charges
collected on the Heilig/Petsmart Loans allocated to the
Heilig/Petsmart Senior Component in accordance with clause
(iii)(A) below:
(A) 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 amount equal to, and
pro rata based on, the Additional Yield Amounts
for each such Class of Certificates for such
Distribution Date; and
(B) Second, to the Holders of the Class IO
Certificates, to the extent of any remaining
portion of such Yield Maintenance Charges
(distributions pursuant to this sub-clause (ii)(B)
to be deemed allocable among the respective
Components of the Class IO 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).
(iii) With respect to Prepayment Premiums and Yield
Maintenance Charges collected on the Heilig/Petsmart Mortgage
Loans:
(A) To the Heilig/Petsmart Senior Component, to be
allocated in accordance with clause (ii) above, an
amount equal to the product of (x) the sum of such
Prepayment Premiums and Yield Maintenance Charges
collected on the Heilig/Petsmart Mortgage Loans,
multiplied by (y) a fraction, the numerator of
which is equal to the Heilig/Petsmart Senior
Balance and the denominator of which is the sum of
the Heilig/Petsmart Senior Balance and the
Heilig/Petsmart Subordinate Balance; and
(B) To the Holders of the Class Q Certificates an
amount equal to the product of (x) the sum of such
Prepayment Premiums and Yield Maintenance Charges
collected on the Heilig/Petsmart Mortgage Loans,
multiplied by (y) a fraction, the numerator of
which is equal to the Heilig/Petsmart Subordinate
Balance and the denominator of which is the
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sum of the Heilig/Petsmart Senior Balance and the
Heilig/Petsmart Subordinate Balance.
On each Distribution Date, the Paying Agent shall withdraw
from the Distribution Account any amounts that represent Additional Interest
actually collected on the ARD Loans and any related REO Loans during the related
Collection Period and shall distribute: (i) 5% of such amounts to the Holders of
the Class IO Certificates; and (ii) 95% of such amounts among the Holders 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 and
the Class F Certificates on a pro rata basis in accordance with the respective
Original Class Principal Balances of such Classes of Certificates, without
regard to whether any such Class is entitled to distributions of principal on
such Distribution Date (whether by reason of its Class Principal Balance having
been reduced to zero or by reason of it not yet being entitled to distributions
of principal). Notwithstanding that the Class Principal Balance or Class
Notional Amount, as the case may be, of any such Class of Certificates has been
reduced to zero, the Holders thereof shall remain entitled to any such
distributions of Additional Interest, provided that the Trustee's obligation is
limited to distributions to the last Certificateholder of record.
(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, but taking into account possible future
distributions of Additional Interest) 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
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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-IV Certificates.
(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
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(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
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-IV 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 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 its
Corresponding REMIC III Regular Interest set forth in the Preliminary Statement
hereto; and all distributions made in respect of the Class IO Certificates on
each Distribution Date pursuant to Section 4.01(a), the first paragraph of
Section 4.01(b) or Section 9.01, and allocable to any particular Component of
such Class of Certificates, shall be deemed to have first been distributed from
REMIC III to REMIC IV in respect of such Component's Corresponding REMIC III
Regular Interest. In each case, if such distribution on any such Class of
Regular Certificates 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, then the corresponding distribution deemed to be
made on a REMIC III Regular Interest
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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 III Regular
Interest.
(i) 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 been
distributed from REMIC II to REMIC III in respect of the REMIC II 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 II Regular Interests, in an amount equal to, and pro
rata in accordance with, all Uncertificated Distributable
Interest in respect of each such REMIC II 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 II Regular Interests, in an amount equal to and pro
rata in accordance with, as to each such REMIC II Regular
Interest, the excess, if any, of the REMIC Principal Balance
of such REMIC II Regular Interest outstanding immediately
prior to such Distribution Date, over the REMIC Principal
Balance of the related REMIC I Senior Regular Interest or the
related Majority Mortgage Loan (or successor REO Loan), as
applicable, that will be outstanding immediately following
such Distribution Date; and
(iii) as deemed distributions in respect of the REMIC II
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 II Regular Interest.
Any Prepayment Premiums or Yield Maintenance Charges with
respect to the Majority Mortgage Loans distributed to any Class of Regular
Certificates on any Distribution Date shall, in each case, be deemed to have
been distributed from REMIC II to REMIC III in respect of the REMIC II Regular
Interest corresponding to the related Majority Mortgage Loan or REO Loan, as the
case may be, in respect of which such premium or charge was received. Any
Prepayment Premiums or Yield Maintenance Charges with respect to the
Heilig/Petsmart Mortgage Loans deemed to be distributed on any Distribution Date
from REMIC I to REMIC II pursuant to Section 4.01(j), shall in each case, be
deemed to have been distributed further from REMIC II to REMIC III in respect of
the REMIC II Regular Interest corresponding to the REMIC I Senior Regular
Interest or REO Loan, as the case may be, in respect of which such premium or
charge was received.
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(j) On each Distribution Date, including, without limitation,
the final Distribution Date in connection with a termination of the Trust Fund,
the applicable portion of 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 Senior Regular Interest, to the extent of the remaining portions of
such funds, for the following purposes and in the following order of priority:
(i) as a deemed distribution of interest in respect of
the REMIC I Senior Regular Interest, in an amount equal to
all Uncertificated Distributable Interest in respect of the
REMIC I Senior Regular Interest for such Distribution Date
and, to the extent not previously deemed distributed, for all
prior Distribution Dates;
(ii) as a deemed distribution of principal in respect of
the REMIC I Senior Regular Interest, in an amount equal to the
excess, if any, of the REMIC Principal Balance of the REMIC I
Senior Regular Interest outstanding immediately prior to such
Distribution Date, over the Heilig/Petsmart Senior Balance
that will be outstanding immediately following such
Distribution Date; and
(iii) as deemed distributions in respect of the REMIC I
Senior Regular Interest, 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 the REMIC I Senior Regular Interest.
Any Prepayment Premiums or Yield Maintenance Charges with
respect to the Heilig/Petsmart Mortgage Loans 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 Senior
Regular Interest.
(k) 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), to the extent
related to Heilig/Petsmart Mortgage Loans, for the following purposes and in the
following order of priority, in each case to the extent of the remaining portion
of the Heilig/Petsmart Available Distribution Amount:
(i) to the Certificateholders (other than the Holders of
the Class Q Certificates) as part of the Available
Distribution Amount for such Distribution Date, in an amount
equal to all Distributable Heilig/Petsmart Senior Component
Interest for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
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(ii) as an allocation to the Heilig/Petsmart Senior
Component to be part of the Available Distribution Amount for
such Distribution Date, up to an amount equal to the lesser of
(A) the portion of such amounts being distributed that are
allocable to principal of the Heilig/Petsmart Mortgage Loans
and (B) the Heilig/Petsmart Senior Balance outstanding
immediately prior to such Distribution Date;
(iii) to the Certificateholders (other than the Holders
of the Class Q Certificates) as part of the Available
Distribution Amount for such Distribution Date, as
reimbursement for all Realized Losses and Additional Trust
Fund Expenses on Heilig/Petsmart Mortgage Loans, if any,
previously allocated to the Certificateholders (other than the
Holders of the Class Q Certificates) and for which no
reimbursement has previously been received;
(iv) to make distributions of interest to the Holders of
the Class Q Certificates, up to an amount equal to all
Distributable Certificate Interest in respect of such Class
for such Distribution Date and, to the extent not previously
distributed, for all prior Distribution Dates, if any;
(v) after the Heilig/Petsmart Senior Balance has been
reduced to zero, to make distributions of principal to the
Holders of the Class Q Certificates, in an amount not to
exceed the Class Principal Balance of the Class Q Certificates
outstanding immediately prior to such Distribution Date; and
(vi) to distributions to the Holders of the Class Q
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 Q Certificates and for
which no reimbursement has been previously received.
SECTION 4.02. Statements to Certificateholders; CMSA Loan File
Report.
(a) On each Distribution Date, the Trustee shall forward by
mail (or by electronic transmission 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 (A) Prepayment Premiums and/or Yield
Maintenance Charges or (B) Additional Interest;
(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, (D) as to which
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foreclosure proceedings have been commenced, and (E) to the
actual knowledge of the Master Servicer or Special Servicer in
bankruptcy proceedings;
(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;
(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;
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(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 Certificates)
and the Component Notional Amount of each Component
outstanding immediately before and immediately after such
Distribution Date, separately identifying any reduction
therein due to the allocation of Realized Losses and
Additional Trust Fund Expenses on such Distribution Date;
(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 and Class R-IV Certificates on such
Distribution Date.
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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).
The Trustee shall make available 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 Liquidation Report, (iii) the Historical Loan Modification
Report, (iv) the REO Status Report, (v) the Watch List, (vi) a Comparative
Financial Status Report, (vii) an Operating Statement Analysis, (viii) an NOI
Adjustment Worksheet and (ix) an Interim Delinquent Loan Status Report. The
Trustee shall make available 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 CMSA Loan File Report,
the CMSA Property File Report, the CMSA Bond File Report, and the CMSA
Collateral 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, upon request, 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
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"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), a
copy of the Distribution Date Statement forwarded to the Holders of the Regular
Certificates on such Distribution Date.
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 CMSA 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 CMSA 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
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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 CMSA 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.
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 or (ii) subject to Section
4.03(c) below, remit from its own funds 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 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) 593-7735 (or such alternative number provided by the Master
Servicer to the Trustee in writing) and by telephone at telephone (704) 593-7821
(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 Periodic
Payments (other than Balloon Payments) and any Assumed Scheduled
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Payments, net of related Servicing Fees, and, if applicable, Swap 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 Mortgage Loan
and such Distribution Date; provided, that, (x) 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, if applicable, Swap Fees) in
the event of subsequent delinquencies thereon; (y) 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 sum of (A) the product of (1) the amount of the interest
portion of the P&I Advance that would otherwise be required without regard to
this clause (ii), multiplied by (2) 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 and (B) the amount of the principal portion of the
P&I Advance that would otherwise be required without regard to this clause (ii);
and (z) the amount calculated pursuant to clause (i) of this paragraph (b) with
respect to the Heilig/Petsmart Mortgage Loans, when added to Periodic Payments,
net of related Servicing Fees, due and received on the Heilig/Petsmart Mortgage
Loans during the related Collection Period, shall not exceed the Heilig/Petsmart
Senior Balance and the interest due thereon for the related Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I
Advance shall be required to be made hereunder if such P&I Advance would, if
made, constitute a Nonrecoverable P&I Advance. 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
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within the twelve months preceding such determination), 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, 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, out of any amounts
then on deposit in the Certificate Account, 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 or in respect of the
related Mortgage Loan or REO Loan during the same Collection Period in which
such P&I Advance is reimbursed (the use of such late payment charges and Penalty
Interest to be allocated between the Master Servicer and the Special Servicer on
a pro rata basis based on the amount of late payment charges and Penalty
Interest that the Master Servicer and the Special Servicer have received as
additional servicing compensation during such period), and (ii) to the extent
that the late payment charges and Penalty Interest described in the immediately
preceding clause (i) are insufficient, but only after such P&I Advance has been
reimbursed, out of general collections on the Mortgage Loans and any 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
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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.
SECTION 4.04. Allocation of Realized Losses and Additional
Trust Fund Expenses; Allocation of Certificate
Deferred Interest.
(a) On each Distribution Date, following all distributions to
be made on such date pursuant to Section 4.01, the Paying Agent shall allocate
first to the Class Q Certificates until the remaining Class Principal Balance
thereof has been reduced to zero, the aggregate of all Realized Losses and
Additional Trust Fund Expenses that were incurred with respect to the
Heilig/Petsmart Mortgage Loans 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 sum of the Heilig/Petsmart Senior
Balance and Heilig/Petsmart Subordinate Balance 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 Heilig/Petsmart Mortgage Loans that will be outstanding
immediately following such Distribution Date. 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
Trust Fund Expenses that were incurred at any time following the Cut-off Date
through the end of the related Collection Period, to the extent not allocated to
the Class Q Certificates on such Distribution Date, 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 excess of the
aggregate Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date over the Heilig/Petsmart
Subordinate Balance immediately following such Distribution Date: first, to the
Class N Certificates, until the remaining Class Principal Balance thereof has
been reduced to zero; second, to the Class M Certificates, until the remaining
Class Principal Balance thereof has been reduced to zero; third, to the Class L
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; fourth, to the Class K Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; fifth, to the Class J
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; sixth, to the Class H Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; seventh, to the Class G
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; eighth, to the Class F Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; ninth, to the Class E
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; tenth, to the Class D Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; eleventh, to the Class C
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; twelfth, to the Class B Certificates, until the remaining Class
Principal Balance
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thereof has been reduced to zero; and thirteenth 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) Each Realized Loss and Additional Trust Fund Expense,
if any, allocated to the Class A-1 Certificates on any Distribution Date
shall be deemed to have first been allocated to REMIC III Regular Interest M
with a corresponding reduction in the REMIC Principal Balance of such REMIC
III Regular Interest; each Realized Loss and Additional Trust Fund Expense,
if any, allocated to the Class A-2 Certificates on any Distribution Date
shall be deemed to have first been allocated to REMIC III Regular Interest N
with a corresponding reduction in the REMIC Principal Balance of such REMIC
III Regular Interest; each Realized Loss and Additional Trust Fund Expense,
if any, allocated to the Class B Certificates on any Distribution Date shall
be deemed to have first been allocated to REMIC III Regular Interest O with a
corresponding reduction in the REMIC Principal Balance of such REMIC III
Regular Interest; each Realized Loss and Additional Trust Fund Expense, if
any, allocated to the Class C Certificates on any Distribution Date shall be
deemed to have first been allocated to REMIC III Regular Interest P with a
corresponding reduction in the REMIC Principal Balance of such REMIC III
Regular Interest; each Realized Loss and Additional Trust Fund Expense, if
any, allocated to the Class D Certificates on any Distribution Date shall be
deemed to have first been allocated to REMIC III Regular Interest Q with a
corresponding reduction in the REMIC Principal Balance of such REMIC III
Regular Interest; each Realized Loss and Additional Trust Fund Expense, if
any, allocated to the Class E Certificates on any Distribution Date shall be
deemed to have first been allocated to REMIC III Regular Interest R with a
corresponding reduction in the REMIC Principal Balance of such REMIC III
Regular Interest; each Realized Loss and Additional Trust Fund Expense, if
any, allocated to the Class F Certificates on any Distribution Date shall be
deemed to have first been allocated to REMIC III Regular Interest S with a
corresponding reduction in the REMIC Principal Balance of such REMIC III
Regular Interest; each Realized Loss and Additional Trust Fund Expense, if
any, allocated to the Class G Certificates on any Distribution Date shall be
deemed to have first been allocated to REMIC III Regular Interest T with a
corresponding reduction in the REMIC Principal Balance of such REMIC III
Regular Interest; each Realized Loss and Additional Trust Fund Expense, if
any, allocated to the Class H Certificates on any Distribution Date shall be
deemed to have first been allocated to REMIC III Regular Interest U with a
corresponding reduction in the REMIC Principal Balance of such REMIC III
Regular Interest; each Realized Loss and Additional Trust Fund Expense, if
any, allocated to the Class J Certificates on any Distribution Date shall be
deemed to have first been allocated to REMIC III Regular Interest V with a
corresponding reduction in the REMIC Principal Balance of such REMIC III
Regular Interest; each Realized Loss and Additional Trust Fund Expense, if
any, allocated to the Class K Certificates on any Distribution Date shall be
deemed to have first been allocated to REMIC III Regular Interest W with a
corresponding reduction in the REMIC Principal Balance of such REMIC III
Regular Interest; each Realized Loss and Additional Trust Fund Expense, if
any, allocated to the Class L Certificates on any Distribution Date shall be
deemed to have first been allocated to REMIC III Regular Interest X with a
corresponding reduction in the REMIC Principal Balance of such REMIC III
Regular Interest; each Realized Loss and Additional Trust Fund Expense, if
any,
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allocated to the Class M Certificates on any Distribution Date shall be deemed
to have first been allocated to REMIC III Regular Interest Y with a
corresponding reduction in the REMIC Principal Balance of such REMIC III Regular
Interest; and each Realized Loss and Additional Trust Fund Expense, if any,
allocated to the Class N Certificates on any Distribution Date shall be deemed
to have first been allocated to REMIC III Regular Interest Z with a
corresponding reduction in the REMIC Principal Balance of such REMIC III Regular
Interest.
(c) On each Distribution Date, following the deemed
distributions to be made in respect of the REMIC II Regular Interests pursuant
to Section 4.01(i), the REMIC Principal Balance of each REMIC II Regular
Interest (after taking account of such deemed distributions) shall be reduced to
equal the REMIC Principal Balance of the related REMIC I Senior Regular Interest
or the Stated Principal Balance of the related Majority Mortgage 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.
(d) On each Distribution Date, following the deemed
distributions to be made in respect of the REMIC I Senior Regular Interest
pursuant to Section 4.01(j), the REMIC Principal Balance of the REMIC I Senior
Regular Interest (after taking account of such deemed distributions) shall be
reduced to equal the Heilig/Petsmart Senior Balance, 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.
(e) On any Distribution Date, the amount of any Mortgage
Deferred Interest with respect to any Heilig/Petsmart Mortgage Loan will be
allocated as Certificate Deferred Interest to the Class Q Certificates, up to
the Accrued Certificate Interest for such Class of Certificates for such
Distribution Date. On each such Distribution Date, the Certificate Principal
Balance of the Class Q Certificates will be increased by the amount of
Certificate Deferred Interest allocated to such Class. On any Distribution Date,
the amount of any Mortgage Deferred Interest, to the extent not allocated to the
Class Q Certificates in accordance with the immediately preceding sentence, will
be allocated as Certificate Deferred Interest to each outstanding Class of
Sequential Pay Certificates in reverse alphabetical order, in each case up to
the respective Accrued Certificate Interest for each such Class of Certificates
for such Distribution Date. On each such Distribution Date, the Certificate
Principal Balance of each Class of Certificates to which Certificate Deferred
Interest has been allocated will be increased by the amount of Certificate
Deferred Interest allocated to such Class.
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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 or liabilities, 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)
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 Regular 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 $10,000
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in the case of the Registered Certificates (other than the Class IO
Certificates), $1,000,000 in the case of the Class IO Certificates, and $250,000
in the case of Non-Registered Certificates (other than the Residual
Certificates), and in each such case in integral multiples of $1 in excess
thereof. The Class R-I Certificates, the Class R-II Certificates, the Class
R-III Certificates and the Class R-IV 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
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
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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 initial 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.
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.
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(c) (i) No transfer of a Class A Certificate or Class IO
Certificate or any interest therein shall be made to any "employee benefit plan"
subject to ERISA or a "plan" described by Section 4975(e)(1) of the Code, or any
entity deemed to hold plan assets of the foregoing by reason of a plan's
investment in such entity (each, a "Plan") unless such Plan qualifies as an
accredited investor as defined in Rule 501(a)(1) of Regulation D under the
Securities Act and either (1) at the time of such transfer, the Class A
Certificates or the Class IO Certificates, as applicable, are rated in one of
the top three rating categories by at least one Rating Agency, or (2) the
purchaser is an insurance company general account that is eligible for, and
satisfies all of the requirements of, Section III of Department of Labor
Prohibited Transaction Class Exemption 95-60 ("PTE 95-60"). Each Person who
acquires a Class A Certificate or Class IO Certificate in Definitive Certificate
form shall be required to certify in writing, in the form attached as Exhibit H
hereto, that it meets the foregoing conditions, and each Person who acquires a
Class A Certificate or Class IO Certificate in Book-Entry Certificate form shall
be deemed to have represented that the foregoing conditions are satisfied and
that it will not transfer such Certificate in violation of the foregoing.
(ii) No transfer of a Subordinated Certificate or any interest
therein shall be made to any Plan unless it is an insurance company general
account which is eligible for, and satisfies all the requirements of, exemptive
relief under Section III of PTE 95-60. Each Person who acquires a Subordinated
Certificate in Definitive Certificate form shall be required to certify in
writing in the form attached as Exhibit H hereto that it meets the foregoing
conditions, and each Person who acquires a Subordinated Certificate in
Book-Entry Certificate form shall be deemed to have represented that the
foregoing conditions are satisfied and that it will not transfer such
Certificate in violation of the foregoing.
(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
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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.
(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,
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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 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.
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(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 Fund), to the
effect that doing so will not cause any of REMIC I, REMIC II,
REMIC III or REMIC IV 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.
(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
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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 Regular Certificates shall initially be
issued as one or more Certificates registered in the name of the Depository or
its nominee and, except as provided in 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 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
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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.
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
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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 of the related Record Date as the owner of
such Certificate for the purpose of receiving distributions pursuant to Section
4.01 and may treat the person whose name each Certificate is registered as of
the date of determination as the owner of such Certificate 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.
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 (other than the Trustee), 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
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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 and (ii) such successor or surviving Person makes the applicable
representations and warranties set forth in Section 3.23.
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, member, manager, 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
(including, without limitation, the distribution of reports and information as
contemplated by this Agreement), 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,
unless it is specifically required hereunder to bear the costs of such legal
action, in its opinion does not involve it in any ultimate expense or liability;
provided, however, that the Depositor, the Master Servicer or the Special
Servicer may in its discretion undertake any such action which it may deem
necessary or desirable with respect to the
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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.
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 by the Master Servicer or Special
Servicer, as applicable (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.
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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 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.
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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; First Union National Bank to
become Special Servicer upon Satisfaction of
Certain Conditions.
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 6.04 (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; provided that such Holder or Holders shall pay all costs
related to the transfer of servicing if the Special Servicer is replaced other
than due to an Event of Default. Such Holder or Holders may also select a
Controlling Class Representative that may advise and direct the Special Servicer
and whose approval is required for certain actions, 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 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 6.04. 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, 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
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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.
Notwithstanding Section 6.04 or the first paragraph of this
Section 6.09, First Union National Bank, subject to the approval of the Holder
or Holders of the Certificates evidencing a majority of the Voting Rights
allocated to the Controlling Class, at its option, shall become the Special
Servicer hereunder upon delivering to the Trustee, with a copy to the Rating
Agencies and to the Special Servicer, (1) an Acknowledgment of Proposed Special
Servicer in the form attached hereto as Exhibit J-2, executed by First Union
National Bank, and (2) an Opinion of Counsel (at the expense of First Union
National Bank) to the effect that, upon the execution and delivery of the
Acknowledgment of Proposed Special Servicer by First Union National Bank, as
Special Servicer, this Agreement shall be enforceable against First Union
National Bank, as Special Servicer, in accordance with its terms; provided that
First Union National Bank shall at the time of such delivery be rated at least
"CSS2" as a special servicer by Fitch and be an "approved" special servicer by
Standard & Poor's; provided, further, that First Union National Bank and the
resigning Special Servicer shall each pay its own costs related to the transfer
of servicing. The exercise of such option shall be subject to no other
conditions. Any existing Special Servicer shall be deemed to have resigned
simultaneously with First Union National Bank 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, 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 First Union National Bank in effecting the termination of the resigning
Special Servicer's responsibilities and rights hereunder, including, without
limitation, the transfer within two Business Days to First Union National Bank
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
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action) that (i) is not expressly prohibited by the 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
necessary or advisable to avoid an Adverse REMIC Event and 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),provided, however, if the Controlling Class Representative and
the Special Servicer cannot agree on a course of action within 60 days of the
occurrence of the event under discussion the Special Servicer shall implement
its proposed course of action:
(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;
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(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;
(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 unless required by the
underlying loan documents;
(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, that the Controlling Class Representative may act solely in the
interests of the Holders of the Controlling Class, that the
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Controlling Class Representative does not have any duties to the Holders of any
Class of Certificates other than the Controlling Class, that the Controlling
Class Representative shall not be deemed to have been negligent or reckless, or
to have acted in bad faith or engaged in willful misfeasance, by reason of its
having acted solely in the interests of the Holders of the Controlling Class,
and that the Controlling Class Representative shall have no liability whatsoever
for having so acted, and no Certificateholder may take any action whatsoever
against the Controlling Class Representative or any director, officer, employee,
agent or principal thereof for having so acted.
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; provided
further, however, that to the extent the Master Servicer does
not timely make such remittances, the Master Servicer shall
pay the Trustee for the account of the Trustee interest on any
amount not timely remitted at the Prime Rate from and
including the applicable required remittance date to but not
including the date such remittance is actually made; 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 to timely make
any Servicing Advance required to be made by it hereunder,
which Servicing Advance remains unmade for a period of five
Business Days following the date on which notice shall have
been given to the Master 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
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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 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
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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
(x) the Trustee shall have received a written notice
from Fitch (which the Trustee shall promptly forward to the
Master Servicer or the Special Servicer, as applicable), to
the effect that if the Master Servicer or the Special
Servicer, as applicable, continues to act in such capacity,
the rating or ratings on one or more Classes of Certificates
will be downgraded or withdrawn if such Master Servicer or the
Special Servicer, as applicable, is not replaced; or
(xi) the Master Servicer or the Special Servicer, as
applicable, (A) is not an "approved" master servicer or
special servicer, as applicable, by Standard & Poor's or (B)
is not rated at least "CMS3" or "CSS3," as applicable, by
Fitch; or
(xii) 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; provided, however, that to
the extent the Master Servicer does not timely make such
remittances, the Master Servicer shall pay the Trustee for the
account of the Trustee interest on any amount not timely
remitted at the Prime Rate from and including the applicable
required remittance date to but not including the date such
remittance is actually made.
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) - (ix),
(xi) and (xii) 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
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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 (x) 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 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
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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 or after the effectiveness
of such resignation) (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 0.15115% per annum based
on the aggregate principal balance of the Semi-Annual Mortgage Loans), cause a
qualified substitute counterparty (possessing a long-term counterparty rating of
at least "A+" by Fitch (if then rated by Fitch) and at least "A+" by Standard &
Poor's 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.
(c) If the Master Servicer is terminated solely due to an
Event of Default under Section 7.01(a)(x) or (xi), and if the terminated Master
Servicer provides the Trustee with the appropriate "request for proposal"
materials within the five Business Days after such termination, then the Trustee
shall promptly thereafter (using such "request for proposal" materials provided
by the terminated Master Servicer) solicit good faith bids for the rights to
master service the Mortgage Loans under this Agreement from at least three (3)
Persons qualified to act as Master Servicer hereunder in accordance with
Sections 6.02 and 7.02 (any such Person so qualified, a "Qualified Bidder") or,
if three (3) Qualified Bidders cannot be located, then from as many Persons as
the Trustee can determine are Qualified Bidders; provided that, at the Trustee's
request, the terminated Master Servicer shall supply the Trustee with the names
of Persons from whom to solicit such bids; and provided, further, that the
Trustee shall not be responsible if less than three (3) or no Qualified Bidders
submit bids for the right to master service the Mortgage Loans under this
Agreement. The bid proposal shall require any Successful Bidder (as defined
below), as a condition of such bid, to enter into this Agreement as successor
Master Servicer, and to agree to be bound by the terms hereof,
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within 45 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 to enter 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 per annum equal to the Master Servicing Fee Rate minus 2.5 basis points per
Mortgage Loan serviced (each, a "Servicing-Retained Bid") and (ii) on the basis
of terminating each Sub-Servicing Agreement and Sub-Servicer that it is
permitted to terminate in accordance with Section 3.22 (each, a "Servicing-
Released Bid"). The Trustee shall select the Qualified Bidder with the highest
cash Servicing- Retained Bid (or, if none, the highest cash Servicing Released
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 (and, if the successful
bid was a Servicing-Retained Bid, to enter into a Sub-Servicing Agreement with
the terminated Master Servicer as contemplated above), no later than 45 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, 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 "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
If the Successful Bidder has not entered into this Agreement
as successor Master Servicer within 45 days after the Trustee was appointed as
successor Master Servicer or no Successful Bidder was identified within such
45-day period, the terminated Master Servicer shall reimburse the Trustee for
all reasonable "out-of-pocket" expenses incurred by the Trustee in connection
with such bid process and the Trustee shall have no further obligations under
this Section 7.01(c). The Trustee thereafter may act or may select a successor
to act as Master Servicer hereunder in accordance with Section 7.02.
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 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
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described in clause 7.01(a)(xii), 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(b), 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, or shall, 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 that the appointment
of such institution would not cause the qualification, downgrading or withdrawal
of the then current rating on any Class of Certificates) or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution that meets the requirements of Section 6.02 (including, without
limitation, rating agency confirmation); provided, however, that in the case of
a resigning or terminated Special Servicer, such appointment shall be subject to
the rights of the Holders of Certificates evidencing a majority of the Voting
Rights allocated to the Controlling Class to designate a successor pursuant to
Section 6.09. Except with respect to an appointment provided below, no
appointment of a successor to the Master Servicer or the Special Servicer
hereunder shall be effective until the assumption of the successor to such party
of all its responsibilities, duties and liabilities under this Agreement.
Pending appointment of a successor to the Master Servicer or the Special
Servicer hereunder, the Trustee shall act in such capacity as hereinabove
provided. Notwithstanding the above, the Trustee shall, if the Master Servicer
is the resigning or terminated party and the Trustee is prohibited by law or
regulation from making P&I Advances, promptly appoint any established mortgage
loan servicing institution that has a net worth of not less than $15,000,000 and
is otherwise acceptable to each Rating Agency (as evidenced by written
confirmation therefrom to the effect 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
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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) and (xii) 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 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
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and debt in connection therewith). Except with respect to an Event of Default
resulting from a breach of the covenant in Section 3.23(d), for which, subject
to Section 3.23(d), 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.
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
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Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of
bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible Officer
or Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts 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
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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 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
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(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 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.
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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, or by reason of its negligent 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) shall survive any resignation or removal of the Trustee
and appointment of a successor trustee.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be 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 long term unsecured debt rating of at least "AA" by each Rating Agency
(determined without regard to pluses or minuses) 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
as confirmed in writing. The Trustee shall also be an entity that (i) has not,
since November 2, 1998, been, and is not, an insider or affiliate of First Union
National Bank, (ii) has not, since November 2, 1998, controlled, and does
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not control, First Union National Bank, (iii) has not, since November 2, 1998,
been, and is not, controlled by First Union National Bank, (iv) has not, since
November 2, 1998, been, and is not, under common control with, First Union
National Bank, and (v) does not cause the trust created hereby to be an insider
or affiliate of First Union National Bank. 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 qualified, downgraded or withdrawn 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.
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. 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
and the Rating Agencies 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
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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 and the Rating Agencies (as evidenced by
written confirmation therefrom to the effect that the appointment of such
institution would not cause the qualification, downgrading or withdrawal of the
then current rating on any Class of Certificates) 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 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
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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 and the Rating
Agencies have provided confirmation pursuant to such Section.
(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 and the Rating Agencies have provided
confirmation pursuant to such Section, 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.
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
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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 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,
any Mortgage Loan Seller or any Affiliate of the Depositor or any 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
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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 and liable
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
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 and liable
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.
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(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 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 Rating Agency, 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;
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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 and liable 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
Paying Agent, any provision or requirement herein requiring notice or any
information to be provided to the Paying 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 and
liable 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.
(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
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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
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)
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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 represents and warrants that 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 does 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 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, (i)
each Distribution Date Statement on Form 8-K within 15 days after each
Distribution Date in each month, (ii) before March 31 of each year, beginning
March 31, 2001, a Form 10-K and (iii) 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
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by the Depositor to discontinue such filings. For any filings pursuant to the
previous sentence that occur after the first anniversary of the Closing Date,
the Trustee shall receive a fee agreed upon by the Trustee and the Depositor in
a separate fee agreement. 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.
SECTION 8.18. Maintenance of Mortgage File.
Except for the release of items in the Mortgage File
contemplated by this Agreement, including, without limitation, as necessary for
the enforcement of the holder's rights and remedies under the related Mortgage
Loan, the Trustee covenants and agrees that it shall maintain each Mortgage File
in the State of Minnesota, and that it shall not move any Mortgage File outside
the State of Minnesota, other than as specifically provided for in this
Agreement, unless it shall first obtain and provide, at the expense of the
Trustee, an Opinion of Counsel to the Depositor and the Rating Agencies to the
effect that the Trustee's first priority interest in the Mortgage Notes has been
duly and fully perfected under the applicable laws and regulations of such other
jurisdiction.
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of
All Mortgage Loans.
Subject to Section 9.02, the Trust 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
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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 and REMIC II at a price equal to (1) the aggregate Purchase
Price of all the Mortgage Loans included in REMIC I and REMIC II, plus (2) the
appraised value of each REO Property, if any, included in REMIC I and REMIC II,
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 REMIC II, 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 Fund created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late ambassador of the
United States to the Court of St. James, living on the date hereof.
The 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 and REMIC
II 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 less the Heilig/Petsmart Subordinate
Balance at the time of such election is less than 1% of the aggregate Cut-off
Date Balances of the Mortgage Loans less the Heilig/Petsmart Subordinate Balance
as of the Closing Date, 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 REMIC II and shall thereafter effect such
purchase in accordance with the terms hereof. The Master 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 REMIC II 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 and REMIC II, 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
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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 and REMIC II, 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 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 order of priority set forth in Section
4.01(a) and (i), in each case to the extent of remaining available funds.
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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 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 REMIC IV
Certificates on the final Distribution Date in accordance with foregoing
provisions of this Section 9.01 shall, if applicable, be deemed to first have
been distributed from REMIC I to REMIC II on the REMIC I Senior Regular Interest
in accordance with Section 4.01(j) and from REMIC II to REMIC III on the various
REMIC II Regular Interests in accordance with Section 4.01(i) and then from
REMIC III to REMIC IV on the various REMIC III Regular Interests in accordance
with Section 4.01(h).
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 and REMIC II as
provided in Section 9.01, the Trust Fund (and, accordingly, REMIC I, REMIC II,
REMIC III and REMIC IV) shall be terminated in accordance with the following
additional requirements, unless the Person effecting 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 as defined in Section 860F of the Code or cause REMIC I, REMIC II,
REMIC III and REMIC IV 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 pursuant to Treasury regulation Section 1.860F-1 and shall
satisfy all requirements of a qualified liquidation under
Section 860F of the
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Code and any regulations thereunder as set forth in an Opinion
of Counsel obtained at the expense of the Trust Fund;
(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 and REMIC II 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 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, which authorization shall
be binding upon all successor Certificateholders.
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 the Regular Certificates (or, in
the case of the Class IO Certificates, each of its Components) 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 REMIC IV, respectively. The Class
R-I Certificates, the Class R-II Certificates, the Class R-III and the Class
R-IV Certificates are hereby 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 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)).
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(c) The Closing Date is hereby designated as the "startup day"
of REMIC I, REMIC II, REMIC III and 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, 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) 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) [RESERVED].
(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 (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. 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. 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 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.
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(h) The REMIC Administrator shall perform on behalf of each of
REMIC I, REMIC II, REMIC III and REMIC IV all reporting and other tax compliance
duties that are the responsibility of each such REMIC under the Code, the REMIC
Provisions or other compliance guidance issued by the 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.
(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 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 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 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 (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, or causing any of REMIC I,
REMIC II, REMIC III or REMIC IV 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 to take any such action
as to which the REMIC Administrator has advised it in writing that an
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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, the Trustee or the REMIC Administrator. 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 and REMIC IV
will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the
Code and "permitted investments" as defined in Section 860G(a)(5) of the Code.
(j) If any tax is imposed on any of REMIC I, REMIC II, REMIC
III or REMIC IV, 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 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 applicable
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 REMIC I or REMIC II,
constitute a "qualified mortgage" as defined in Section 860G(a)(3) of the Code;
or (vi) the Trust Fund excluding the portion thereof constituting the Grantor
Trust, in all other instances. Any tax permitted to be incurred by the Special
Servicer pursuant to Section 3.17(a) shall be charged to and paid by the Trust
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 on a calendar year and on an accrual basis.
(l) Following the 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
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REMIC IV 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, REMIC
II, REMIC III or REMIC IV, (C) the termination of REMIC I, REMIC II, REMIC III
and REMIC IV 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 (other
than 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 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 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 will receive a fee
or other compensation for services nor permit REMIC I, REMIC II or REMIC III to
receive any income from assets other than "qualified mortgages" as defined in
Section 860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code.
SECTION 10.02. Grantor Trust Administration.
(a) The REMIC Administrator shall treat the Grantor Trust, for
tax return preparation purposes, as a grantor trust under the Code and shall
treat the Additional Interest as a separate asset of the Grantor Trust, and not
of REMIC I, REMIC II, REMIC III or REMIC IV, as permitted by Treasury
Regulations Section 1.860G-2(i)(1) and, if necessary, under applicable state
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law and will file appropriate federal or state Tax Returns for each taxable year
ending on or after the last day of the calendar year in which the Certificates
are issued.
(b) 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 the Grantor Trust (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
REMIC Administrator from the Trust Fund unless otherwise provided in Section
10.02(e) or 10.02(f)).
(c) The REMIC Administrator shall prepare, sign and file when
due all of the Tax Returns in respect of the Grantor Trust. 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 the Grantor Trust as is in its possession and
reasonably requested by the REMIC Administrator to enable it to perform its
obligations under this Section 10.02. 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, and the REMIC Administrator's duty to perform its reporting and other
tax compliance obligations under this Section 10.02 shall be subject to the
condition that it receives from the Depositor such information possessed by the
Depositor that is necessary to permit the REMIC Administrator to perform such
obligations.
(d) The REMIC Administrator shall perform on behalf of the
Grantor Trust all reporting and other tax compliance duties that are required in
respect thereof under the Code, the Grantor Trust Provisions or other compliance
guidance issued by the Internal Revenue Service or any state or local taxing
authority.
(e) The REMIC Administrator shall perform its duties hereunder
so as to maintain the status of the Grantor Trust as a grantor trust under the
Grantor Trust 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 the Grantor Trust to take) any
action or fail to take (or fail to cause to be taken) any action that, under the
Grantor Trust Provisions, if taken or not taken, as the case may be, could
endanger the status of the Grantor Trust as a grantor trust under the Grantor
Trust Provisions (any such endangerment of grantor trust status, an "Adverse
Grantor Trust 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 taking any action for the benefit of the
Certificateholders) to the effect that the contemplated action will not result
in an Adverse Grantor Trust Event. None of the other parties hereto shall take
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any action or fail to take any action (whether or not authorized hereunder) as
to which the REMIC Administrator has advised it in writing that the REMIC
Administrator has received or obtained an Opinion of Counsel to the effect that
an Adverse Grantor Trust Event could result from such action or failure to act.
In addition, prior to taking any action with respect to the Grantor Trust, or
causing the Trust Fund 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 Grantor Trust Event to occur.
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, the REMIC Administrator or the
Trustee.
(f) If any tax is imposed on the Grantor Trust, 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 Section 10.02; (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 Section
10.02; (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 Section 10.02; (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 Section 10.02; or (v) the portion of the Trust Fund constituting the
Grantor Trust in all other instances.
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 (at
the expense of the Trust Fund, in the case of any amendment requested by the
Master Servicer or Special Servicer that protects or is in furtherance of the
interests of the Certificateholders, and otherwise at the expense of the party
seeking such amendment) delivered to the Master Servicer, the Special Servicer
and the Trustee, is advisable or reasonably necessary to comply with any
requirements
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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 (at the expense of the Trust Fund, in the case of any
amendment requested by the Master Servicer or Special Servicer that protects or
is in furtherance of the interests of the Certificateholders, and otherwise at
the expense of the party seeking such amendment) 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 provisions of Section 3.20 without the consent of the Holders of
Certificates entitled to all of the Voting Rights or (v) modify the definition
of Servicing Standard or 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
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with an Opinion of Counsel (at the expense of the Trust Fund, in the case of any
amendment requested by the Master Servicer or Special Servicer that protects or
is in furtherance of the interests of the Certificateholders, and, otherwise, 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 pursuant to the REMIC Provisions or on the Grantor Trust or cause any
of REMIC I, REMIC II, REMIC III or REMIC IV to fail to qualify as a REMIC or the
Grantor Trust to fail to qualify as a "grantor trust" at any time that any
Certificates are outstanding and (ii) such amendment complies with the
provisions of this Section 10.01.
(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 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.
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(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 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.
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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, NC
1075, 8739 Research Drive - URP4, Charlotte, North Carolina 28262-1075,
Attention: First Union National Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2000- C1, facsimile number:
704-593-7735; (iii) in the case of the Special Servicer, ORIX Real Estate
Capital Markets, LLC, 1717 Main Street, 14th Floor, Dallas, Texas 75201,
Attention: Edgar L. Smith II, telecopy number: (214) 237-2034, with a copy to
ORIX Real Estate Capital Markets, LLC, 1717 Main Street, 12th Floor, Dallas,
Texas 75201, Attention: Paul Smyth, facsimile number: (214) 237-2040; (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 National Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2000-C1,
facsimile number 410-884-2360; (v) in the case of the Underwriters to each of
First Union Securities Inc., First Union Capital Markets Group, One First Union
Center, DC6, Charlotte, North Carolina 28288-1075, Attention: Craig M.
Lieberman, First Union National Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2000-C1, facsimile number:
704-374-6435 and Merrill Lynch, Pierce, Fenner & Smith, Incorporated, 100 Church
Street, 18th Floor, New York, New York 10080-6518, Attention: Andrea Balkan,
facsimile number (212) 602-7552; (vi) in the case of the Rating Agencies, (A)
Standard & Poor's Ratings Services, 55 Water St., New York, New York; and (B)
Fitch IBCA, Inc., One State Street Plaza, New York, New York 10041, Attention:
Commercial Mortgage - Backed Securities, facsimile number (212) 635-0295; or as
to each such Person such other address as may hereafter be furnished by such
Person to the parties hereto in writing. Any communication required or permitted
to be delivered to a Certificateholder shall be deemed to have been duly given
when mailed first class, postage prepaid, to the address of such Holder as shown
in the Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements,
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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. If
such conveyance is deemed to be a pledge of security for a loan, however, the
Depositor intends that the rights and obligations of the parties to such loan
shall be established pursuant to the terms of this Agreement. The Depositor also
intends and agrees that, in such event, the Depositor shall be deemed to have
granted to the Trustee (in such capacity) a first priority security interest in
the Depositor's entire right, title and interest in and to the assets
constituting the Trust Fund.
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. 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.
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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.
(a) The Trustee shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this
Agreement;
(ii) the occurrence of any Event of Default that has
not been cured;
(iii) the resignation or termination of the Trustee, the
Master Servicer or the Special Servicer;
(iv) the repurchase of Mortgage Loans by either of the
Mortgage Loan Sellers pursuant to either of the Mortgage Loan
Purchase Agreements;
(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:
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(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.
(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.
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.
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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:
---------------------------------
Name: Craig Lieberman
Title: Vice President
FIRST UNION NATIONAL BANK
Master Servicer
By:
---------------------------------
Name: Timothy S. Ryan
Title: Vice President
ORIX REAL ESTATE CAPITAL
MARKETS, LLC
Special Servicer
By:
---------------------------------
Name: Edgar L. Smith
Title: Chief Operating Officer
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
Trustee
By:
---------------------------------
Name: Leslie A. Gaskill
Title: Vice President
220
<PAGE>
EXHIBIT A-1
CLASS A-1 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Pass-Through Rate: 7.739% per annum Class Principal Balance of the Class A-1
Certificates as of the Closing Date:
$95,500,000
Date of Pooling and Servicing Agreement: Initial Certificate Principal Balance of this
as of May 1, 2000 Class A-1 Certificate as of the Closing Date:
$95,500,000
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1 CUSIP No. 33736 XAA 7
</TABLE>
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
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<PAGE>
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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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").
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,
CLASS H, CLASS J, CLASS K, CLASS L, CLASS M AND CLASS N 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.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS SUCH PLAN QUALIFIES AS AN ACCREDITED INVESTOR AS DEFINED IN RULE
501(A)(1) OF REGULATION D UNDER THE SECURITIES ACT AND EITHER (1) AT THE TIME OF
SUCH TRANSFER, THE CERTIFICATES ARE RATED IN ONE OF THE TOP THREE RATING
CATEGORIES BY AT LEAST ONE RATING AGENCY, OR (2) THE PURCHASER IS AN INSURANCE
COMPANY GENERAL ACCOUNT THAT IS ELIGIBLE FOR, AND SATISFIES ALL OF THE
REQUIREMENTS OF, SECTION III OF DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO
HAVE CERTIFIED
2
<PAGE>
THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced 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), ORIX Real Estate Capital Markets, LLC (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"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made 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. 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 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,
but taking into account possible future distributions of Additional Interest)
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
3
<PAGE>
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 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 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 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,
4
<PAGE>
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 any advance with respect thereto) or other liquidation 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 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.
5
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:_________________________________________
Authorized Representative
6
<PAGE>
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 Representative
7
<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
8
<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.
9
<PAGE>
EXHIBIT A-2-1
CLASS A-2 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Pass-Through Rate: 7.841% per annum Class Principal Balance of the Class A-2
Certificates as of the Closing Date:
$480,921,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal Balance of this
May 1, 2000 Class A-2 Certificate as of the Closing
Date: $400,000,000
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1_
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1 CUSIP No. 33736 XAB 5
</TABLE>
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
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<PAGE>
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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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").
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,
CLASS H, CLASS J, CLASS K, CLASS L, CLASS M AND CLASS N CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
AND 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.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS SUCH PLAN QUALIFIES AS AN ACCREDITED INVESTOR AS DEFINED IN RULE
501(A)(1) OF REGULATION D UNDER THE SECURITIES ACT AND EITHER (1) AT THE TIME OF
SUCH TRANSFER, THE CERTIFICATES ARE RATED IN ONE OF THE TOP THREE RATING
CATEGORIES BY AT LEAST ONE RATING AGENCY, OR (2) THE PURCHASER IS AN INSURANCE
COMPANY GENERAL ACCOUNT THAT IS ELIGIBLE FOR, AND SATISFIES ALL OF THE
REQUIREMENTS OF, SECTION III OF DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO
HAVE CERTIFIED
2
<PAGE>
THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced 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), ORIX Real Estate Capital Markets, LLC (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"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made 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 Expense previously allocated to this Certificate,
but taking into account possible future distributions of Additional Interest)
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
3
<PAGE>
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 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 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.
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,
4
<PAGE>
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 any advance with respect thereto) or other liquidation 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 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.
5
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:_________________________________________
Authorized Representative
6
<PAGE>
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 Representative
7
<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
8
<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.
9
<PAGE>
EXHIBIT A-2-2
CLASS A-2 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Pass-Through Rate: 7.841% per annum Class Principal Balance of the Class A-2
Certificates as of the Closing Date:
$480,921,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal Balance of this
May 1, 2000 Class A-2 Certificate as of the Closing
Date: $80,921,000
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 2 CUSIP No. 33736 XAB 5
</TABLE>
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
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<PAGE>
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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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").
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,
CLASS H, CLASS J, CLASS K, CLASS L, CLASS M AND CLASS N CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
AND 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.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS SUCH PLAN QUALIFIES AS AN ACCREDITED INVESTOR AS DEFINED IN RULE
501(A)(1) OF REGULATION D UNDER THE SECURITIES ACT AND EITHER (1) AT THE TIME OF
SUCH TRANSFER, THE CERTIFICATES ARE RATED IN ONE OF THE TOP THREE RATING
CATEGORIES BY AT LEAST ONE RATING AGENCY, OR (2) THE PURCHASER IS AN INSURANCE
COMPANY GENERAL ACCOUNT THAT IS ELIGIBLE FOR, AND SATISFIES ALL OF THE
REQUIREMENTS OF, SECTION III OF DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO
HAVE CERTIFIED
2
<PAGE>
THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced 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), ORIX Real Estate Capital Markets, LLC
(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"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made 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 Expense previously allocated to this Certificate,
but taking into account possible future distributions of Additional Interest)
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
3
<PAGE>
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 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 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.
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,
4
<PAGE>
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 any advance with respect thereto) or other liquidation 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 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.
5
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:__________________________________
Authorized Representative
6
<PAGE>
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 Representative
7
<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
8
<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.
9
<PAGE>
EXHIBIT A-3-1
CLASS IO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Pass-Through Rate: Variable Aggregate Certificate Notional Amount of
all Class IO Certificates as of the Closing
Date: $776,325,806
Date of Pooling and Servicing Agreement: Certificate Notional Amount of this Class
as of May 1, 2000 IO Certificate as of the Closing Date:
$400,000,000
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1 CUSIP No. 33736 XAH 2
</TABLE>
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.
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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 MAY 11, 2000. 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 (WITHIN
THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% EXCEPT THAT IT IS ASSUMED THAT
THE ARD LOANS PAY THEIR RESPECTIVE OUTSTANDING PRINCIPAL BALANCES ON THEIR
RELATED ANTICIPATED REPAYMENT DATES (AS SUCH TERMS ARE USED IN THE PROSPECTUS
SUPPLEMENT) (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH
NO MORE THAN $29.01 OF OID PER $1,000 OF INITIAL CERTIFICATE NOTIONAL BALANCE,
THE YIELD TO MATURITY IS 10.3134% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE
TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $.3943 PER $1,000 OF INITIAL
CERTIFICATE NOTIONAL BALANCE, 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.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT
2
<PAGE>
IN SUCH ENTITY (EACH, A "PLAN") UNLESS SUCH PLAN QUALIFIES AS AN ACCREDITED
INVESTOR AS DEFINED IN RULE 501(A)(1) OF REGULATION D UNDER THE SECURITIES ACT
AND EITHER (1) AT THE TIME OF SUCH TRANSFER, THE CERTIFICATES ARE RATED IN ONE
OF THE TOP THREE RATING CATEGORIES BY AT LEAST ONE RATING AGENCY, OR (2) THE
PURCHASER IS AN INSURANCE COMPANY GENERAL ACCOUNT THAT IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS OF, SECTION III OF DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE
SATISFIED, AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE
FOREGOING.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class IO Certificate in that certain
beneficial ownership interest evidenced by all the Class IO 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), ORIX Real Estate Capital Markets, LLC (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"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made 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 Certificates on
the applicable Distribution Date pursuant to the Agreement. The Pass-Through
Rate applicable to each Component of the Class IO Certificates for each
Distribution Date will equal the excess, if any, of the REMIC II Remittance Rate
for such Distribution Date over the Pass-Through Rate then applicable to the
corresponding Class of Sequential Pay Certificates. All distributions made under
the Agreement on the Class IO Certificates will be made by Norwest Bank
Minnesota, National Association, as paying agent (the "Paying Agent"), by wire
transfer of
3
<PAGE>
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 such other location specified in the
notice to the 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 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
Certificates are exchangeable for new Class IO 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 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 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
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.
4
<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 any advance with respect thereto)
or other liquidation 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.
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.
5
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:________________________________________
Authorized Representative
6
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:__________________________________
Authorized Representative
7
<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
8
<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.
9
<PAGE>
EXHIBIT A-3-2
CLASS IO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Pass-Through Rate: Variable Aggregate Certificate Notional Amount of
all Class IO Certificates as of the Closing
Date: $776,325,806
Date of Pooling and Servicing Agreement: Certificate Notional Amount of this Class
as of May 1, 2000 IO Certificate as of the Closing Date:
$376,325,806
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 2 CUSIP No. 33736 XAH 2
</TABLE>
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.
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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 MAY 11, 2000. 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 (WITHIN
THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% EXCEPT THAT IT IS ASSUMED THAT
THE ARD LOANS PAY THEIR RESPECTIVE OUTSTANDING PRINCIPAL BALANCE ON THEIR
RELATED ANTICIPATED REPAYMENT DATES (AS SUCH TERMS ARE USED IN THE PROSPECTUS
SUPPLEMENT) (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH
NO MORE THAN $29.01 OF OID PER $1,000 OF INITIAL CERTIFICATE NOTIONAL BALANCE,
THE YIELD TO MATURITY IS 10.3134% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE
TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $.3943 PER $1,000 OF INITIAL
CERTIFICATE NOTIONAL BALANCE, 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.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT
2
<PAGE>
IN SUCH ENTITY (EACH, A "PLAN") UNLESS SUCH PLAN QUALIFIES AS AN ACCREDITED
INVESTOR AS DEFINED IN RULE 501(A)(1) OF REGULATION D UNDER THE SECURITIES ACT
AND EITHER (1) AT THE TIME OF SUCH TRANSFER, THE CERTIFICATES ARE RATED IN ONE
OF THE TOP THREE RATING CATEGORIES BY AT LEAST ONE RATING AGENCY, OR (2) THE
PURCHASER IS AN INSURANCE COMPANY GENERAL ACCOUNT THAT IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS OF, SECTION III OF DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE
SATISFIED, AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE
FOREGOING.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class IO Certificate in that certain
beneficial ownership interest evidenced by all the Class IO 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), ORIX Real Estate Capital Markets, LLC (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"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made 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 Certificates on
the applicable Distribution Date pursuant to the Agreement. The Pass-Through
Rate applicable to each Component of the Class IO Certificates for each
Distribution Date will equal the excess, if any, of the REMIC II Remittance Rate
for such Distribution Date over the Pass-Through Rate then applicable to the
corresponding Class of Sequential Pay Certificates. All distributions made under
the Agreement on the Class IO Certificates will be made by Norwest Bank
Minnesota, National Association, as paying agent (the "Paying Agent"), by wire
transfer of
3
<PAGE>
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 such other location specified in the
notice to the 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 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
Certificates are exchangeable for new Class IO 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 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 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
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.
4
<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 any advance with respect thereto)
or other liquidation 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.
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.
5
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:___________________________________
Authorized Representative
6
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:____________________________________
Authorized Representative
7
<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
8
<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.
40026299.1 00625559
9
<PAGE>
EXHIBIT A-4
CLASS B COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Pass-Through Rate: Lesser of 7.973% per annum Class Principal Balance of the Class B
or the applicable Weighted Average REMIC III Certificates as of the Closing Date:
Remittance Rate $38,817,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal Balance of this
May 1, 2000 Class B Certificate as of the Closing Date:
$38,817,000
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1 CUSIP No. 33736 XAC 3
</TABLE>
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
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<PAGE>
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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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 CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
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, CLASS H,
CLASS J, CLASS K, CLASS L, CLASS M AND CLASS N 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
2
<PAGE>
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this 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), ORIX Real Estate Capital Markets, LLC (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"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made 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. The Pass-Through
Rate applicable to the Class B Certificates as of each Distribution Date will
equal the lesser of 7.973% per annum and the applicable Weighted Average REMIC I
Remittance Rate for such Distribution Date. 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, but taking into account
possible future distributions of Additional Interest) 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
3
<PAGE>
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 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 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.
4
<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 any advance with respect thereto)
or other liquidation 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.
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.
5
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:__________________________________
Authorized Representative
6
<PAGE>
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 Representative
7
<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
8
<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.
9
<PAGE>
EXHIBIT A-5
CLASS C COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Pass-Through Rate: Lesser of 8.087% per annum Class Principal Balance of the Class C
or the applicable Weighted Average REMIC III Certificates as of the Closing Date:
Remittance Rate $34,934,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal Balance of this
May 1, 2000 Class C Certificate as of the Closing Date:
$34,934,000
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1 CUSIP No. 33736 XAD 1
</TABLE>
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
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<PAGE>
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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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 CERTIFICATES AND THE CLASS B CERTIFICATES OF THE SAME
SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
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, CLASS
H, CLASS J, CLASS K, CLASS L, CLASS M AND CLASS N 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
2
<PAGE>
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this 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), ORIX Real Estate Capital Markets, LLC (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"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made 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. The Pass-Through
Rate applicable to the Class C Certificates as of each Distribution Date will
equal the lesser of 8.087% per annum and the applicable Weighted Average REMIC I
Remittance Rate for such Distribution Date. 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, but taking into account
possible future distributions of Additional Interest) 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
3
<PAGE>
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 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 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.
4
<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 any advance with respect thereto)
or other liquidation 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.
5
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:__________________________________
Authorized Representative
6
<PAGE>
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 Representative
7
<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
8
<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.
9
<PAGE>
EXHIBIT A-6
CLASS D COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Pass-Through Rate: Lesser of 8.185% per annum Class Principal Balance of the Class D
or the applicable Weighted Average REMIC III Certificates as of the Closing Date:
Remittance Rate $11,645,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal Balance of this
May 1, 2000 Class D Certificate as of the Closing Date:
$11,645,000
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1 CUSIP No. 33736 XAE 9
</TABLE>
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
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<PAGE>
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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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 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.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
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
2
<PAGE>
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS E, CLASS F, CLASS G, CLASS
H, CLASS J, CLASS K, CLASS L, CLASS M AND CLASS N 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 Cede & Co. 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), ORIX Real Estate Capital Markets, LLC (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"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made 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. The Pass-Through
Rate applicable to the Class D Certificates as of each Distribution Date will
equal the lesser of 8.185% per annum and the applicable Weighted Average REMIC I
Remittance Rate for such Distribution Date. 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
3
<PAGE>
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, but taking into account
possible future distributions of Additional Interest) 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 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.
4
<PAGE>
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 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 any advance with respect thereto)
or other liquidation 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.
5
<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.
6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
7
<PAGE>
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 Representative
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
9
<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.
10
<PAGE>
EXHIBIT A-7
CLASS E COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Pass-Through Rate: Weighted Average REMIC III Class Principal Balance of the Class E
Remittance Rate Certificates as of the Closing Date:
$25,231,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal Balance of this
May 1, 2000 Class E Certificate as of the Closing Date:
$25,231,000
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1 CUSIP No. 33736 XAF 6
</TABLE>
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
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<PAGE>
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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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 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.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
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.
2
<PAGE>
IN ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS F,
CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M AND CLASS N 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 Cede & Co. 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
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC (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"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made 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. The Pass-Through
Rate applicable to the Class E Certificates on each Distribution Date will equal
the Weighted Average REMIC I Remittance Rate. 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
3
<PAGE>
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, but taking into account
possible future distributions of Additional Interest) 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 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.
4
<PAGE>
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 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 any advance with respect thereto)
or other liquidation 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.
5
<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.
6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:____________________________________
Authorized Representative
7
<PAGE>
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 Representative
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
9
<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.
10
<PAGE>
EXHIBIT A-8
CLASS F COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Pass-Through Rate: Weighted Average REMIC III Class Principal Balance of the Class F
Remittance Rate Certificates as of the Closing Date:
$11,645,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal Balance of this
May 1, 2000 Class F Certificate as of the Closing Date:
$11,645,000
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1 CUSIP No. 33736 XAG 4
</TABLE>
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
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<PAGE>
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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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 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.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
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
MAY 11, 2000. 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 (WITHIN THE MEANING OF
2
<PAGE>
THE PROSPECTUS SUPPLEMENT) OF 0% EXCEPT THAT IT IS ASSUMED THAT THE ARD LOANS
PAY THEIR RESPECTIVE OUTSTANDING PRINCIPAL BALANCES ON THEIR RELATED ANTICIPATED
REPAYMENT DATES (AS SUCH TERMS ARE USED IN THE PROSPECTUS SUPPLEMENT) (THE
"PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN
$39.69 OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO
MATURITY IS 8.8939% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL
ACCRUAL PERIOD IS NO MORE THAN $.044 PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, 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 ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS G, CLASS H, CLASS J, CLASS K, CLASS
L, CLASS M AND CLASS N 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 Cede & Co. 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), ORIX Real Estate Capital Markets, LLC (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
3
<PAGE>
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"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made 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. The Pass-Through
Rate applicable to the Class F Certificates on each Distribution Date will equal
the Weighted Average REMIC I Remittance Rate. 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 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, but taking into account
possible future distributions of Additional Interest) 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.
4
<PAGE>
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.
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 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 any advance with respect thereto)
or other liquidation 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
5
<PAGE>
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.
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.
6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:_____________________________________
Authorized Representative
7
<PAGE>
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 Representative
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
9
<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.
40026299.1 00625559
10
<PAGE>
EXHIBIT A-9
CLASS G COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Pass-Through Rate: 6.250% per annum Class Principal Balance of the Class G
Certificates as of the Closing Date:
$29,112,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal Balance of this
May 1, 2000 Class G Certificate as of the Closing Date:
$29,112,000
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1 CUSIP No. 33736 XAJ 8
</TABLE>
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
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<PAGE>
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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E 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 THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
2
<PAGE>
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 MAY 11, 2000. 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 (WITHIN
THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% EXCEPT THAT IT IS ASSUMED THAT
THE ARD LOANS PAY THEIR RESPECTIVE OUTSTANDING PRINCIPAL BALANCES ON THEIR
RELATED ANTICIPATED REPAYMENT DATES (AS SUCH TERMS ARE USED IN THE PROSPECTUS
SUPPLEMENT) (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH
NO MORE THAN $315.492 OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, THE YIELD TO MATURITY IS 10.894% PER ANNUM AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $1.144 PER $1,000 OF
INITIAL CERTIFICATE PRINCIPAL BALANCE, 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 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 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, CLASS J, CLASS K,
CLASS L, CLASS M AND CLASS N 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 Cede & Co. 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
3
<PAGE>
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), ORIX Real Estate Capital Markets, LLC (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"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made 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
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,
but taking into account possible future distributions of Additional Interest)
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 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 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, the
Underwriters 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
5
<PAGE>
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 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 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 any advance with respect thereto)
or other liquidation 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 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
6
<PAGE>
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: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:_____________________________________
Authorized Representative
8
<PAGE>
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 Representative
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
10
<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.
11
<PAGE>
EXHIBIT A-10
CLASS H COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Pass-Through Rate: 6.250% per annum Class Principal Balance of the Class H
Certificates as of the Closing Date:
$7,763,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal Balance of this
May 1, 2000 Class H Certificate as of the Closing Date:
$7,763,000
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1 CUSIP No. 33736 XAK 5
</TABLE>
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
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<PAGE>
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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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 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 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 THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
2
<PAGE>
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 MAY 11, 2000. 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 (WITHIN
THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% EXCEPT THAT IT IS ASSUMED THAT
THE ARD LOANS PAY THEIR RESPECTIVE OUTSTANDING PRINCIPAL BALANCES ON THEIR
RELATED ANTICIPATED REPAYMENT DATES (AS SUCH TERMS ARE USED IN THE PROSPECTUS
SUPPLEMENT) (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH
NO MORE THAN $354.075 OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, THE YIELD TO MATURITY IS 11.152% PER ANNUM AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $.905 PER $1,000 OF
INITIAL CERTIFICATE PRINCIPAL BALANCE, 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. IN ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS
J, CLASS K, CLASS L, CLASS M AND CLASS N 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 Cede & Co. is the registered owner of the
Percentage Interest evidenced by this 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
3
<PAGE>
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), ORIX Real Estate Capital Markets, LLC (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"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made 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,
but taking into account possible future distributions of Additional Interest)
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 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.
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, the
Underwriters 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
5
<PAGE>
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.
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 any advance with respect thereto)
or other liquidation 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
6
<PAGE>
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: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:__________________________________________
Authorized Representative
8
<PAGE>
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 Representative
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
10
<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.
40026299.1 00625559
11
<PAGE>
EXHIBIT A-11
CLASS J COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Pass-Through Rate: 6.250% per annum Class Principal Balance of the Class J
Certificates as of the Closing Date:
$3,882,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal Balance of this
May 1, 2000 Class J Certificate as of the Closing Date:
$3,882,000
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1 CUSIP No. 33736 XAL 3
</TABLE>
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
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<PAGE>
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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F
CERTIFICATES, THE CLASS G CERTIFICATES AND THE 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 THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
2
<PAGE>
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 MAY 11, 2000. 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 (WITHIN
THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% EXCEPT THAT IT IS ASSUMED THAT
THE ARD LOANS PAY THEIR RESPECTIVE OUTSTANDING PRINCIPAL BALANCES ON THEIR
RELATED ANTICIPATED REPAYMENT DATES (AS SUCH TERMS ARE USED IN THE PROSPECTUS
SUPPLEMENT) (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH
NO MORE THAN $390.39 OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE,
THE YIELD TO MATURITY IS 11.867% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO
THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $.9342 PER $1,000 OF INITIAL
CERTIFICATE PRINCIPAL BALANCE, 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,
THE CLASS G CERTIFICATES AND THE CLASS H 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 K, CLASS L, CLASS M AND CLASS N
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 Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class J Certificate (obtained by dividing
the principal amount of this Class J Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class J Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial
3
<PAGE>
ownership interest evidenced by all the Class J 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), ORIX Real Estate Capital Markets, LLC (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"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made 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 J Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class J 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,
but taking into account possible future distributions of Additional Interest)
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
4
<PAGE>
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 J 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 J
Certificates are exchangeable for new Class J 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 J Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class J 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, the
Underwriters 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
5
<PAGE>
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 J
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 J Certificate without registration or qualification. Any Class J
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class J 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 J 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 J
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 any advance with respect thereto)
or other liquidation 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 J 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
6
<PAGE>
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: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:_____________________________________
Authorized Representative
8
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:_____________________________________
Authorized Representative
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
10
<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.
11
<PAGE>
EXHIBIT A-12
CLASS K COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Pass-Through Rate: 6.250% per annum Class Principal Balance of the Class K
Certificates as of the Closing Date:
$7,763,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal Balance of this
May 1, 2000 Class K Certificate as of the Closing Date:
$7,763,000
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1 CUSIP No. 33736 XAM 1
</TABLE>
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
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<PAGE>
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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F
CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES AND THE CLASS J
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 THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
2
<PAGE>
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 MAY 11, 2000. 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 (WITHIN
THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% EXCEPT THAT IT IS ASSUMED THAT
THE ARD LOANS PAY THEIR RESPECTIVE OUTSTANDING PRINCIPAL BALANCES ON THEIR
RELATED ANTICIPATED REPAYMENT DATES (AS SUCH TERMS ARE USED IN THE PROSPECTUS
SUPPLEMENT) (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH
NO MORE THAN $473.36 OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE,
THE YIELD TO MATURITY IS 13.764% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO
THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $.9483 PER $1,000 OF INITIAL
CERTIFICATE PRINCIPAL BALANCE, 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,
THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES AND THE CLASS J 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 L, CLASS M AND CLASS N
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 Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class K Certificate (obtained by dividing
the principal amount of this Class K Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class K Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain
3
<PAGE>
beneficial ownership interest evidenced by all the Class K 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), ORIX Real Estate Capital Markets, LLC (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"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made 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 K Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class K 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,
but taking into account possible future distributions of Additional Interest)
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
4
<PAGE>
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 K 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 K
Certificates are exchangeable for new Class K 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 K Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class K 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, the
Underwriters 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
5
<PAGE>
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 K 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 K Certificate without
registration or qualification. Any Class K Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class K 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 K 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 K
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 any advance with respect thereto)
or other liquidation 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 K 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
6
<PAGE>
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: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:_____________________________________
Authorized Representative
8
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:_____________________________________
Authorized Representative
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
10
<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.
40026299.1 00625559
11
<PAGE>
EXHIBIT A-13
CLASS L COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Pass-Through Rate: 6.250% per annum Class Principal Balance of the Class L
Certificates as of the Closing Date:
$5,823,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal Balance of this
May 1, 2000 Class L Certificate as of the Closing Date:
$5,823,000
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1 CUSIP No. 33736 XAN 9
</TABLE>
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
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<PAGE>
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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F
CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J
CERTIFICATES AND THE CLASS K 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 THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
2
<PAGE>
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 MAY 11, 2000. 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 (WITHIN
THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% EXCEPT THAT IT IS ASSUMED THAT
THE ARD LOANS PAY THEIR RESPECTIVE OUTSTANDING PRINCIPAL BALANCES ON THEIR
RELATED ANTICIPATED REPAYMENT DATES (AS SUCH TERMS ARE USED IN THE PROSPECTUS
SUPPLEMENT) (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH
NO MORE THAN $482.84 OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE,
THE YIELD TO MATURITY IS 13.9993% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE
TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $.9403 PER $1,000 OF INITIAL
CERTIFICATE PRINCIPAL BALANCE, 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,
THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J CERTIFICATES AND
THE CLASS K 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
M AND CLASS N 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 Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class L Certificate (obtained by dividing
the principal amount of this Class L Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class L Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain
3
<PAGE>
beneficial ownership interest evidenced by all the Class L 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), ORIX Real Estate Capital Markets, LLC (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"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made 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 L Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class L 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,
but taking into account possible future distributions of Additional Interest)
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
4
<PAGE>
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 L 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 L
Certificates are exchangeable for new Class L 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 L Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class L 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, the
Underwriters 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
5
<PAGE>
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 L
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 L Certificate without registration or qualification. Any Class L
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class L 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 L 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 L
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 any advance with respect thereto)
or other liquidation 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 L 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
6
<PAGE>
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: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:_____________________________________
Authorized Representative
8
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:_____________________________________
Authorized Representative
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
10
<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.
11
<PAGE>
EXHIBIT A-14
CLASS M COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK-CHASE MANHATTAN BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Pass-Through Rate: 6.250% per annum Class Principal Balance of the Class M
Certificates as of the Closing Date:
$8,733,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal Balance of this
May 1, 2000 Class M Certificate as of the Closing Date:
$8,733,000
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1 CUSIP No. 33736 XAP 4
</TABLE>
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
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<PAGE>
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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F
CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J
CERTIFICATES, THE CLASS K AND THE CLASS L 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 THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
2
<PAGE>
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 MAY 11, 2000. 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 (WITHIN
THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% EXCEPT THAT IT IS ASSUMED THAT
THE ARD LOANS PAY THEIR RESPECTIVE OUTSTANDING PRINCIPAL BALANCES ON THEIR
RELATED ANTICIPATED REPAYMENT DATES (AS SUCH TERMS ARE USED IN THE PROSPECTUS
SUPPLEMENT) (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH
NO MORE THAN $543.47 OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE,
THE YIELD TO MATURITY IS 15.395% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO
THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $.741 PER $1,000 OF INITIAL
CERTIFICATE PRINCIPAL BALANCE, 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,
THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J CERTIFICATES,
THE CLASS K CERTIFICATES AND THE CLASS L 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 N CERTIFICATES 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 Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class M Certificate (obtained by dividing
the principal amount of this Class M Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class M Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain
3
<PAGE>
beneficial ownership interest evidenced by all the Class M 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), ORIX Real Estate Capital Markets, LLC (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"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made 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 M Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class M 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,
but taking into account possible future distributions of Additional Interest)
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
4
<PAGE>
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 M 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 M
Certificates are exchangeable for new Class M 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 M Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class M 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, the
Underwriters 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
5
<PAGE>
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 M 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 M Certificate without
registration or qualification. Any Class M Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class M 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 M 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 M
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 any advance with respect thereto)
or other liquidation 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 M 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
6
<PAGE>
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: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:_____________________________________
Authorized Representative
8
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:_____________________________________
Authorized Representative
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
10
<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.
11
<PAGE>
EXHIBIT A-15
CLASS N COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Pass-Through Rate: 6.250% per annum Class Principal Balance of the Class N
Certificates as of the Closing Date:
$14,556,806
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal Balance of this
May 1, 2000 Class N Certificate as of the Closing Date:
$14,556,806
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1 CUSIP No. 33736 XAQ 2
</TABLE>
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
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<PAGE>
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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F
CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J
CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L CERTIFICATES AND THE CLASS M
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 THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
2
<PAGE>
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 MAY 11, 2000. 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 (WITHIN
THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% EXCEPT THAT IT IS ASSUMED THAT
THE ARD LOANS PAY THEIR RESPECTIVE OUTSTANDING PRINCIPAL BALANCES ON THEIR
RELATED ANTICIPATED REPAYMENT DATES (AS SUCH TERMS ARE USED IN THE PROSPECTUS
SUPPLEMENT) (THE "PREPAYMENT ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH
NO MORE THAN $742.793 OF OID PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, THE YIELD TO MATURITY IS 24.695% PER ANNUM AND THE AMOUNT OF OID
ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $.1041 PER $1,000 OF
INITIAL CERTIFICATE PRINCIPAL BALANCE, 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,
THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J CERTIFICATES,
THE CLASS K CERTIFICATES, THE CLASS L CERTIFICATES AND THE CLASS M 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,
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 Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class N Certificate (obtained by dividing
the principal amount of this Class N Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class N Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class N
Certificates in the Trust Fund created
3
<PAGE>
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), ORIX Real Estate Capital Markets, LLC (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"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made 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 N Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class N 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,
but taking into account possible future distributions of Additional Interest)
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 N 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 N
Certificates are exchangeable for new Class N 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 N Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class N 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, the
Underwriters 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
5
<PAGE>
register or qualify the Class N 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 N Certificate without registration
or qualification. Any Class N Certificateholder desiring to effect such a
transfer shall, and by the acceptance of its Class N 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 N 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 N
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 any advance with respect thereto)
or other liquidation 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 N 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
6
<PAGE>
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: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:_____________________________________
Authorized Representative
8
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class N Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:_____________________________________
Authorized Representative
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
10
<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.
40026299.1 00625559
11
<PAGE>
EXHIBIT A-16
CLASS Q COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Pass-Through Rate: Weighted Average REMIC I Class Principal Balance of the Class Q
Remittance Rate Certificates as of the Closing Date:
$2,127,760
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal Balance of this
May 1, 2000 Class Q Certificate as of the Closing Date:
$2,127,760
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Heilig/Petsmart Mortgage Loans as of the
Cut-Off Date: $9,874,385(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1 CUSIP No. 33736 XAR 0
</TABLE>
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, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by this Class Q Certificate.
<PAGE>
LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR
ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE HELIG/PETSMART SENIOR COMPONENT 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 THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
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 MAY 11, 2000. 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 (WITHIN
THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% EXCEPT THAT IT IS ASSUMED THAT
THE ARD LOANS PAY THEIR RESPECTIVE OUTSTANDING PRINCIPAL BALANCES ON THEIR
RELATED ANTICIPATED REPAYMENT DATES (AS SUCH TERMS ARE USED IN THE PROSPECTUS
SUPPLEMENT) (THE "PREPAYMENT ASSUMPTION"), THIS
2
<PAGE>
CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $847.84 OF OID PER $1,000 OF
INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS 52.99% PER ANNUM
AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN
$.271 PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, 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 HEILIG/PETSMART SENIOR BALANCE IS 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, 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 Merrill Lynch, Pierce, Fenner & Smith Incorporated
is the registered owner of the Percentage Interest evidenced by this Class Q
Certificate (obtained by dividing the principal amount of this Class Q
Certificate (its "Certificate Principal Balance") as of the Closing Date by the
aggregate principal amount of all the Class Q Certificates (their "Class
Principal Balance") as of the Closing Date) in that certain beneficial ownership
interest evidenced by all the Class Q 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), ORIX Real Estate Capital Markets, LLC (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"), provided,
however, that the Distribution Date will be no earlier than the fourth Business
Day following the Determination Date (as defined below) in the month in which
such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately
3
<PAGE>
following (each, a "Determination Date"). Distributions will be made 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 Q Certificates on the applicable Distribution Date pursuant to the
Agreement. The Pass-Through Rate applicable to the Class Q Certificates on each
Distribution Date will equal the Weighted Average REMIC I Remittance Rate. All
distributions made under the Agreement on the Class Q 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,
but taking into account possible future distributions of Additional Interest)
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 Q Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject
4
<PAGE>
to certain limitations therein set forth, Class Q Certificates are exchangeable
for new Class Q 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 Q Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class Q 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, the
Underwriters 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 Q 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 Q Certificate without
registration or qualification. Any Class Q Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class Q 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 Q 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 N
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,
5
<PAGE>
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 any advance with respect thereto)
or other liquidation 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 Q 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.
6
<PAGE>
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:_____________________________________
Authorized Representative
7
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Class Q Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:_____________________________________
Authorized Representative
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
9
<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.
10
<PAGE>
EXHIBIT A-17
CLASS R-I COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Date of Pooling and Servicing Agreement: as of Percentage Interest evidenced by this Class
May 1, 2000 R-I Certificate: 100%
Closing Date: May 11 , 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1
</TABLE>
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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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, CLASS B,
CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L,
CLASS M, CLASS N AND CLASS Q CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<PAGE>
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 THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN").
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 UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that First Union National Bank 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), ORIX Real Estate Capital Markets, LLC (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"), provided,
however, that the Distribution Date will be no earlier than the fourth
2
<PAGE>
Business Day following the Determination Date (as defined below) in the month in
which such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made 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.
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, the Underwriters or their 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
3
<PAGE>
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 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 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
4
<PAGE>
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 qualify, downgrade or withdraw 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, 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 Fund), 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 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.
5
<PAGE>
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 treated as a corporation or a
partnership for United States 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
enacted that provide otherwise), 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 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 any advance with respect thereto)
or other liquidation 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 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,
6
<PAGE>
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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:_____________________________________
Authorized Representative
7
<PAGE>
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 Representative
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
9
<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.
40026299.1 00625559
10
<PAGE>
EXHIBIT A-18
CLASS R-II COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Date of Pooling and Servicing Agreement: as of Percentage Interest evidenced by this Class
May 1, 2000 R-II Certificate: 100%
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1
</TABLE>
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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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, CLASS B,
CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L,
CLASS M, CLASS N AND CLASS Q CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<PAGE>
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 THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN").
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 UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that First Union National Bank 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), ORIX Real Estate Capital Markets, LLC
(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"), provided,
however, that the Distribution Date will be no earlier than the fourth
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<PAGE>
Business Day following the Determination Date (as defined below) in the month in
which such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made 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.
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, the Underwriters or their 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
3
<PAGE>
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 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 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
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<PAGE>
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 qualify, downgrade or withdraw 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, 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 Fund), 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 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.
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<PAGE>
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 treated as a corporation or a
partnership for United States 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
enacted that provide otherwise), 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 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 any advance with respect thereto)
or other liquidation 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 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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:_____________________________________
Authorized Representative
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<PAGE>
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 Representative
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
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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.
40026299.1 00625559
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<PAGE>
EXHIBIT A-19
CLASS R-III COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Date of Pooling and Servicing Agreement: as of Percentage Interest evidenced by this Class
May 1, 2000 R-III Certificate: 100%
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1
</TABLE>
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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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, CLASS B,
CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L,
CLASS M, CLASS N AND CLASS Q CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<PAGE>
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 THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN").
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 UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that First Union National Bank 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), ORIX Real Estate Capital Markets, LLC
(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
2
<PAGE>
"Distribution Date"), provided, however, that the Distribution Date will be no
earlier than the fourth Business Day following the Determination Date (as
defined below) in the month in which such Distribution Date occurs. With respect
to each Distribution Date, the Determination Date is the 11th day of each month
or, if such 11th day is not a Business Day, the Business Day immediately
following (each, a "Determination Date"). Distributions will be made 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.
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, the Underwriters or their affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the
3
<PAGE>
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 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 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
4
<PAGE>
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 qualify, downgrade or withdraw 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, 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 Fund), 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 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.
5
<PAGE>
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 treated as a corporation or a
partnership for United States 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
enacted that provide otherwise), 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 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 any advance with respect thereto)
or other liquidation 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 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
6
<PAGE>
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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:_____________________________________
Authorized Representative
7
<PAGE>
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 Representative
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
9
<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.
10
<PAGE>
EXHIBIT A-20
CLASS R-IV COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2000-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 NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
<TABLE>
<S> <C>
Date of Pooling and Servicing Agreement: as of Percentage Interest evidenced by this Class
May 1, 2000 R-IV Certificate: 100%
Closing Date: May 11, 2000 Aggregate Stated Principal Balance of the
Mortgage Loans as of the Cut-Off Date:
$778,453,566(1)
First Distribution Date: June 16, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota, National
Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1
</TABLE>
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, ORIX REAL ESTATE CAPITAL MARKETS, LLC 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, CLASS B,
CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L,
CLASS M, CLASS N AND CLASS Q CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
- ----------
(1) Includes $2,127,760, which is the balance of the Heilig/Petsmart
Subordinate Component, represented solely by the Class Q Certificate and
not by this Certificate.
<PAGE>
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 THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN").
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 UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that First Union National Bank 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 (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), ORIX Real Estate Capital Markets, LLC
(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"), provided,
however, that the Distribution Date will be no earlier than the fourth
2
<PAGE>
Business Day following the Determination Date (as defined below) in the month in
which such Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made 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. 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.
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, the Underwriters or their 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
3
<PAGE>
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 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 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
4
<PAGE>
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 qualify, downgrade or withdraw 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, 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 Fund), 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 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.
5
<PAGE>
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 treated as a corporation or a
partnership for United States 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
enacted that provide otherwise), 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.
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 any advance with respect thereto)
or other liquidation 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 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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 11, 2000
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:_____________________________________
Authorized Representative
7
<PAGE>
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 Representative
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
9
<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.
40026299.1 00625559
10
<PAGE>
EXHIBIT B
MORTGAGE LOAN SCHEDULE
The Mortgage Loans transferred pursuant to this Agreement are set forth in Annex
A-1 to the Prospectus Supplement and are hereby incorporated.
B-1
<PAGE>
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST SERIES 2000-C1
MORTGAGE LOAN SCHEDULE CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS AND
ALL LOANS MORTGAGED PROPERTIES
<TABLE>
<CAPTION>
Control Name Zip
Number Property Address City State Code
- ------ -------- ------- ---- ----- ----
<S> <C> <C> <C> <C> <C>
111 102-104 East 116th Street 102-104 East 116th Street New York NY 10035
84 103rd Street Family Center 6733 103rd Street Jacksonville FL 32210
140 1342 N. Detroit 1342 N. Detroit Street Hollywood CA 90069
75 1390-1400/1409-1429/2074-2100 Park Street Various Hartford CT 06106
75.1 1390-1400 Park Street 1390-1400 Park Street Hartford CT 06106
75.2 2074-2100 Park Street (aka 340 Prospect Ave.) 2074-2100 Park Street (aka 340 Prospect Ave.) Hartford CT 06106
75.3 1409-1429 Park Street 1409-1429 Park Street Hartford CT 06106
120 170 Portola Road 170 Portola Valley Road Portola Valley CA 94028
144 204 Lakeview Avenue 204 Lakeview Avenue Clifton NJ 07011
66 222 West 37th Street 222 West 37th Street New York NY 10018
119 5 Daniel Road 5 Daniel Road Fairfield NJ 07004
145 554-562 Valley Road 554-562 Valley Road West Orange NJ 07052
134 63 Elm Street Apartments 63 Elm Street Montclair NJ 07042
115 866 Westmount Apts. 866 Westmount Drive West Hollywood CA 90069
137 Alma School Shopping Center 2950 South Alma School Mesa AZ 85210
122 Amber Square Apartments 2803 Woodbury Drive San Antonio TX 78217
136 Amberwood Apartments Phase II 1308 - 1309 Amberwood Drive Norfolk NE 68701
69 Ashler Oaks Apartments 4100 Parkdale Drive San Antonio TX 78229
91 Ashton Hall ALF 1155 Hwy 29S Lawrenceville GA 30245
19 Atrium Mall @ James R. Thompson Center 100 W. Randolph Street Chicago IL 60601
107 Bear Valley Shopping Center 25030-25100 Allesandro Blvd Moreno Valley CA 92553
20 Beltway Plaza Retail Center 9310-9340 South Eastern Avenue Henderson NV 89014
39 Big V Shopping Center 1129-1131 Campbell Avenue West Haven CT 06516
4 BR- Peartree Square 691 Co-op City Blvd Bronx NY 10475
29 Bristol Place Shopping Center 3310-3398 South Bristol Street Santa Ana CA 92701
127 BT Self Storage 126 Hamburg Turnpike Bloomingdale NJ 07403
88 Campus Walk Apartments 950 Hudson Road Marietta GA 30060
118 Carlton Court Apartments 5024 E. Thomas Rd Phoenix AZ 85018
36 Carrboro Plaza Shopping Center 104 West NC Highway 54 Carrboro NC 27510
81 Cedar Street Design Center 601, 619 & 623 Cedar Street Charlotte NC 28202
95 Cesery Apartments- Pool A Various Jacksonville FL 32211
95.1 Monterey Manor Garden 1038 Caliente Drive Jacksonville FL 32211
95.2 Matanzas Apartments 5642 Matanzas Way Jacksonville FL 32211
95.3 Georgetown Apts. 5611 Holly Bell Drive Jacksonville FL 32211
25 Cesery Apartments- Pool B Various Jacksonville FL Various
25.1 Greenbrier Apartments 3031 Tall Pine Lane W. Jacksonville FL 32211
25.2 Forest Park 3206 Justina Road Jacksonville FL 32211
25.3 Colony Apartments 5814 Merrill Road Jacksonville FL 32277
25.4 Sweetbriar I and II 5736 Merrill Road Jacksonville FL 32277
25.5 Villa Capri I and II 3102 Tall Pine Lane Jacksonville FL 32211
67 Chapin Center 1419 Chapin Road Chapin SC 29036
86 Chaska Business Center 343 82nd Street Chaska MN 55318
23 Chateau Vestavia 2435 Columbiana Road Birmingham AL 35216
7 Club Lake Pointe Apartments 555 Lakeview Drive Coral Springs FL 33071
53 College Park Shopping Center 5110-5158 South Rural Road Tempe AZ 85282
94 Colonial Shopping Center 430 North Country Road St. James NY 11780
63 Comfort Inn-Bossier City, LA 1100 Delhi Avenue Bossier City LA 71111
8 Covina Town Center AMC Theaters 1414 N. Azusa Avenue Covina CA 91722
44 Crescent Cove Apartments 2500 Crescent Cove Drive Evans CO 80620
121 Crystal Trace Apartments 1901 South 26th Street Ft. Pierce FL 34947
73 Eagle Rock II 3760 University Blvd. South Jacksonville FL 32216
34 Eatontown Plaza 50 Route 36 Eatontown NJ 07724
77 Edgewood Apartments 1601 Highway 90 West Sealy TX 77474
123 Elm Lake Apartments 6318 14th Street East Bradenton FL 34203
124 Elm Tree Apartments 3401 South 200 East Salt Lake City UT 84115
31 Engineering Technology Building 769, 777, and 789 Chicago Road Troy MI 48083
106 Enterprise Center 11833 Canon Boulevard Newport News VA 23606
<CAPTION>
Monthly
P&I For All
Payments Monthly Balloon
Following P&I Mortgage
Cut-Off Expiration Payment Original Remaining Loans, the
Date of Any Scheduled Term to Term to Maturity Remaining Orig. Remain.
Control Loan Applicable for Mortgage Maturity Maturity Date or Amort. Amort. Amort.
Number Balance IO Periods 6/1/00 Rate or ARD or ARD ARD Term Term Term
- ------ ------- ---------- ------ ---- ------ ------ --- ---- ---- ----
<C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
111 1,572,089 12,341 12,341 8.7200% 120 119 04/01/2010 359 360 359
84 2,441,510 20,042 20,042 9.0800% 120 118 03/01/2010 358 360 358
140 779,532 6,025 6,025 8.5500% 120 119 04/01/2010 359 360 359
75 2,797,397 23,020 23,020 8.7500% 120 119 04/01/2010 299 300 299
75.1
75.2
75.3
120 1,298,840 10,910 10,910 9.0000% 120 119 04/01/2010 299 300 299
144 298,823 2,326 2,326 8.6250% 120 119 04/01/2010 359 360 359
66 3,397,128 27,357 27,357 9.0000% 120 118 03/01/2010 358 360 358
119 1,361,163 10,731 10,731 8.7500% 120 116 01/01/2010 356 360 356
145 211,884 1,706 1,706 9.0000% 120 119 04/01/2010 359 360 359
134 883,269 7,121 7,121 9.0000% 120 116 01/01/2010 356 360 356
115 1,471,016 11,175 11,175 8.3400% 120 115 12/01/2009 355 360 355
137 793,710 6,448 6,448 9.0900% 120 117 02/01/2010 357 360 357
122 1,246,156 9,493 9,493 8.3750% 120 116 01/01/2010 356 360 356
136 837,617 6,252 6,252 8.1500% 120 115 12/01/2009 355 360 355
69 3,234,819 24,905 24,905 8.4900% 120 116 01/01/2010 356 360 356
91 2,298,776 18,714 18,714 9.1250% 120 119 04/01/2010 359 360 359
19 11,500,000 88,670 81,746 8.5300% 120 117 02/01/2010 360 360 360
107 1,618,298 12,996 12,996 8.9600% 120 117 02/01/2010 357 360 357
20 11,472,586 85,830 85,830 8.1800% 120 116 01/01/2010 356 360 356
39 6,856,033 50,575 50,575 8.0300% 120 116 01/01/2010 356 360 356
4 22,221,654 178,175 178,175 8.8125% 120 117 02/01/2010 357 360 357
29 9,142,500 70,817 65,369 8.5800% 120 117 02/01/2010 360 360 360
127 1,052,435 9,309 9,309 9.6250% 120 117 02/01/2010 297 300 297
88 2,355,808 18,188 18,188 8.5200% 120 116 01/01/2010 356 360 356
118 1,362,684 10,861 10,861 8.8750% 120 117 02/01/2010 357 360 357
36 7,495,372 57,191 57,191 8.4100% 120 119 04/01/2010 359 360 359
81 2,504,881 20,525 20,525 8.6900% 120 118 03/01/2010 298 300 298
95 2,245,365 17,658 17,658 8.6000% 120 117 02/01/2010 357 360 357
95.1
95.2
95.3
25 9,979,399 78,478 78,478 8.6000% 120 117 02/01/2010 357 360 357
25.1
25.2
25.3
25.4
25.5
67 3,366,177 28,396 28,396 8.7500% 120 119 04/01/2010 275 276 275
86 2,425,542 21,585 21,585 8.1000% 59 54 11/01/2004 211 216 211
23 10,527,405 82,094 82,094 8.6300% 120 116 01/01/2010 356 360 356
7 19,711,917 146,261 146,261 8.0920% 120 116 01/01/2010 356 360 356
53 4,335,398 33,409 33,409 8.5000% 180 176 01/01/2015 356 360 356
94 2,254,709 17,982 17,982 8.8750% 120 115 12/01/2009 355 360 355
63 3,631,431 30,257 30,257 8.8500% 120 114 11/01/2009 294 300 294
8 17,379,334 132,975 132,975 8.4400% 120 119 04/01/2010 359 360 359
44 5,344,795 39,892 39,892 8.1500% 120 115 12/01/2009 355 360 355
121 1,297,263 10,181 10,181 8.7000% 120 116 01/01/2010 356 360 356
73 2,938,780 22,971 22,971 8.6600% 120 117 02/01/2010 357 360 357
34 7,995,193 61,740 61,740 8.5400% 120 119 04/01/2010 359 360 359
77 2,593,550 20,191 20,191 8.6250% 120 118 03/01/2010 358 360 358
123 1,169,125 8,674 8,674 7.8750% 336 330 11/01/2027 336 330
124 1,147,021 8,843 8,843 8.5000% 120 115 12/01/2009 355 360 355
31 8,875,539 66,817 66,817 8.1250% 120 116 01/01/2010 356 360 356
106 1,664,958 13,138 13,138 8.7500% 120 114 11/01/2009 354 360 354
<CAPTION>
Is the
Mortgage Interest
Loan Total Rate Effective Is the
Secured Master Administ- During Date of Mortgage Credit
by a Servicing rative Hyper- Hyper Loan an Lease
Control Ground Fee Fee ARD Amort Amort Actual/360 Loan Loan CTL
Number Lease? Rate Rate Loans Period? Provisions Loan? Seller Flag Guarantor
- ------ ------ ---- ---- ----- ------- ---------- ----- ------ ---- ---------
<S> <C> <C> <C> <C> <C> <S> <C> <C> <C> <C>
111 N 0.0250% 0.05385% N NA NA Y FUNB
84 N 0.0250% 0.05385% N NA NA Y ML
140 N 0.0250% 0.05385% N NA NA Y FUNB
75 N 0.0250% 0.05385% N NA NA Y ML
75.1 ML
75.2 ML
75.3 ML
120 Y 0.0250% 0.05385% N NA NA Y FUNB
144 N 0.0250% 0.05385% N NA NA Y FUNB
66 N 0.0250% 0.05385% N NA NA Y ML
119 N 0.0250% 0.05385% N NA NA Y FUNB
145 N 0.0250% 0.05385% N NA NA Y FUNB
134 N 0.0250% 0.05385% N NA NA Y FUNB
115 N 0.0250% 0.05385% N NA NA Y FUNB
137 N 0.0250% 0.05385% N NA NA Y FUNB
122 N 0.0250% 0.05385% N NA NA Y FUNB
136 N 0.0250% 0.05385% N NA NA Y FUNB
69 N 0.0250% 0.05385% N NA NA Y FUNB
91 N 0.0250% 0.05385% N NA NA Y FUNB
19 Y 0.0250% 0.05385% N NA NA Y FUNB
107 N 0.0250% 0.05385% N NA NA Y FUNB
20 N 0.0250% 0.05385% N NA NA Y FUNB
39 N 0.0250% 0.05385% N NA NA Y FUNB
4 N 0.0250% 0.05385% Y 10.81250% 02/01/2010 Y ML
29 N 0.0250% 0.05385% N NA NA Y FUNB
127 N 0.0250% 0.05385% N NA NA Y FUNB
88 N 0.0250% 0.05385% N NA NA Y FUNB
118 N 0.0250% 0.05385% N NA NA Y FUNB
36 N 0.0250% 0.05385% N NA NA Y ML
81 N 0.0250% 0.05385% N NA NA Y FUNB
95 N 0.0250% 0.05385% N NA NA Y ML
95.1 ML
95.2 ML
95.3 ML
25 N 0.0250% 0.05385% N NA NA Y ML
25.1 ML
25.2 ML
25.3 ML
25.4 ML
25.5 ML
67 N 0.0250% 0.05385% N NA NA Y FUNB
86 N 0.0250% 0.05385% Y 10.10000% 11/01/2004 Y FUNB
23 N 0.0250% 0.05385% N NA NA Y FUNB
7 N 0.0250% 0.05385% N NA NA Y FUNB
53 N 0.0250% 0.08885% N NA NA Y FUNB
94 N 0.0250% 0.05385% N NA NA Y FUNB
63 N 0.0250% 0.05385% N NA NA Y FUNB
8 N 0.0250% 0.05385% N NA NA Y ML
44 N 0.0250% 0.05385% N NA NA Y FUNB
121 N 0.0250% 0.05385% N NA NA Y FUNB
73 N 0.0250% 0.05385% N NA NA Y FUNB
34 N 0.0250% 0.05385% N NA NA Y ML
77 N 0.0250% 0.05385% N NA NA Y FUNB
123 N 0.0250% 0.05385% N NA NA N FUNB
124 N 0.0250% 0.05385% N NA NA Y FUNB
31 N 0.0250% 0.05385% N NA NA Y ML
106 N 0.0250% 0.05385% N NA NA Y FUNB
<CAPTION>
Is the
Mortgage
Loan
insured Cross
by a Collater- Is the Is the
Lease alized Mortgage Mortgage Is the
Enhance- and Is the Loan a Loan Mortgage
ment Cross Mortgage Semi- secured Loan an
Policy Defaulted Loan a Annual by a Interest
Control or RVI Loan Defeasance Mortgage letter of Reserve
Number Policy? Flag Loan? Loan? credit? Loan? Lockbox
- ------ ------- ---- ----- ----- ------- ----- -------
<C> <C> <S> <C> <C> <C> <C> <C>
111 N Y N N Y
84 N Y N N Y
140 N Y N N Y
75 N Y N N Y
75.1
75.2
75.3
120 N Y N N Y
144 N Trematore Y N N Y
66 N Y N N Y
119 N Y N N Y
145 N Trematore Y N N Y
134 N Y N N Y
115 N Y N N Y
137 N Y N N Y
122 N Lynd Y N N Y
136 N Timm Y N N Y
69 N Y N N Y
91 N Y N N Y
19 N Y N N Y
107 N Y N N Y
20 N Y N N Y
39 N Y N N Y
4 N Y N N Y Hard
29 N Y N N Y
127 N Y N N Y
88 N Y N N Y
118 N Y N N Y
36 N Y N N Y
81 N Y N N Y
95 N Y N N Y
95.1
95.2
95.3
25 N Y N N Y
25.1
25.2
25.3
25.4
25.5
67 N Y N N Y
86 N Y N N Y
23 N Y N N Y
7 N Y N Y Y Springing
53 N Y N N Y
94 N Y N N Y
63 N Y N N Y
8 N Y N N Y Hard
44 N Timm Y N N Y
121 N Y N N Y
73 N Y N N Y
34 N Y N N Y
77 N Y N N Y
123 N N N N N
124 N Y N N Y
31 N Y N N Y
106 N Y N N Y
<CAPTION>
Annual
Monthly Dep
Replacement Annual Annual Replace- Upfront Initial
Control Reserves Tax Insurance ment TI/LC at Repair
Number Escrow Escrow Escrow Reserve Closing Reserves
- ------ ------ ------ ------ ------- ------- --------
<S> <C> <C> <C> <C> <C> <C>
111 562.50 10,156.56 3,509.40 6,750.00 0.00 5,625.00
84 784.00 3,790.09 396.61 9,408.00 30,000.00 0.00
140 187.50 13,005.00 2,400.00 2,250.00 0.00 0.00
75 6998.00 12,941.65 1,745.17 83,976.00 0.00 85,350.00
75.1
75.2
75.3
120 92.36 15,019.56 5,715.96 1,108.32 0.00 0.00
144 97.40 10,686.84 2,733.00 1,168.80 0.00 1,250.00
66 822.00 13,492.00 859.00 9,864.00 140,000.00 0.00
119 490.83 31,950.00 4,486.08 5,889.96 0.00 0.00
145 96.15 10,506.96 3,651.96 1,153.80 0.00 12,500.00
134 939.25 33,750.00 8,584.68 11,271.00 0.00 10,218.75
115 655.00 27,066.96 4,112.16 7,860.00 0.00 3,000.00
137 360.64 14,368.44 2,061.00 4,327.68 0.00 0.00
122 1333.33 23,062.08 6,825.00 15,999.96 0.00 3,250.00
136 500.00 16,284.00 1,237.80 6,000.00 0.00 0.00
69 3125.00 41,595.24 15,765.12 37,500.00 0.00 18,875.00
91 1750.00 22,588.32 10,431.96 21,000.00 0.00 625.00
19 590.44 0.00 0.00 7,085.28 0.00 0.00
107 405.60 18,701.28 2,157.00 4,867.20 0.00 0.00
20 674.78 37,905.00 9,645.96 8,097.36 50,000.00 0.00
39 435.85 91,907.28 15,093.96 5,222.28 0.00 4,281.25
4 1747.00 7,103.00 2,767.59 20,964.00 888,172.00 0.00
29 1574.13 114,301.56 12,509.04 18,889.56 0.00 48,250.00
127 330.00 25,256.52 3,291.96 3,960.00 0.00 0.00
88 3000.00 45,662.40 12,390.00 36,000.00 0.00 19,325.00
118 937.50 9,065.64 3,438.00 11,250.00 0.00 0.00
36 4357.00 8,201.78 829.60 52,284.00 160,000.00 390,000.00
81 386.67 33,206.52 8,388.00 4,640.04 110,000.00 0.00
95 3479.00 1,490.00 0.00 41,748.00 0.00 0.00
95.1
95.2
95.3
25 11625.00 9,290.00 0.00 139,500.00 0.00 0.00
25.1
25.2
25.3
25.4
25.5
67 525.11 58,620.60 5,447.04 6,301.32 0.00 5,250.00
86 0.00 83,601.96 4,163.04 0.00 0.00 0.00
23 3645.83 124,562.04 45,613.92 43,749.96 0.00 1,250.00
7 5000.00 327,106.32 90,518.04 60,000.00 0.00 0.00
53 678.10 81,757.56 8,076.00 8,137.20 0.00 0.00
94 163.33 40,162.56 9,939.00 1,959.96 0.00 12,050.00
63 4385.79 24,267.96 12,014.64 51,777.84 0.00 2,000.00
8 1189.00 0.00 0.00 14,268.00 150,000.00 0.00
44 2000.00 50,175.96 5,404.20 24,000.00 0.00 0.00
121 875.00 30,160.44 8,647.68 10,500.00 0.00 3,125.00
73 2645.83 38,256.24 12,744.48 31,749.96 0.00 39,437.50
34 977.00 6,779.00 3,795.00 11,724.00 0.00 0.00
77 2901.33 50,448.36 21,920.04 34,815.96 0.00 21,937.50
123 1066.67 32,421.00 8,178.36 12,800.04 0.00 0.00
124 979.17 10,262.88 5,007.96 11,750.04 0.00 0.00
31 0.00 0.00 0.00 0.00 361,175.00 94,625.00
106 393.23 28,650.12 1,842.96 4,718.76 95,000.00 0.00
Initial
Environ- Future
Control mental TI/LC
Number Reserves Escrows?
- ------ -------- --------
111 0.00 NA
84 0.00 Y - See Footnote 1
140 0.00 NA
75 51,875.00 NA
75.1 NA
75.2 NA
75.3 NA
120 0.00 NA
144 0.00 NA
66 0.00 Y - See Footnote 1
119 0.00 NA
145 0.00 NA
134 30,000.00 NA
115 0.00 NA
137 0.00 NA
122 0.00 NA
136 0.00 NA
69 0.00 NA
91 0.00 NA
19 0.00 NA
107 0.00 NA
20 0.00 Y - See Footnote 1
39 0.00 NA
4 0.00 NA
29 0.00 NA
127 0.00 NA
88 0.00 NA
118 0.00 NA
36 0.00 NA
81 0.00 NA
95 0.00 NA
95.1 NA
95.2 NA
95.3 NA
25 0.00 NA
25.1 NA
25.2 NA
25.3 NA
25.4 NA
25.5 NA
67 0.00 NA
86 0.00 NA
23 0.00 NA
7 0.00 NA
53 0.00 NA
94 0.00 NA
63 0.00 NA
8 0.00 Y - See Footnote 1
44 0.00 NA
121 0.00 NA
73 0.00 NA
34 0.00 NA
77 0.00 NA
123 0.00 NA
124 0.00 NA
31 0.00 NA
106 0.00 NA
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Control Name Zip
Number Property Address City State Code
- ------ -------- ------- ---- ----- ----
<S> <C> <C> <C> <C> <C>
42 Esprit Luxury Villas 9830 Reagan Rd. San Diego CA 92126
99 Fallbrook Towne Centre 1075-1079 S. Mission Road Fallbrook CA 92028
14 Fountain Valley Center 16027-16205 Brookhurst Street Fountain Valley CA 92708
40 Gateway East Medical Office Buildings 7852,7878 and 7888 Gateway East Boulevard El Paso TX 79915
27 Giant Fredericksburg Leavells Road and Route 208 Fredericksburg VA 22407
139 Grace & First Street Apartments 13-15-17 East Grace Street Richmond VA 23219
68 Grandview Apartments Phase II 1319 East 45th Street Kearney NE 68847
18 Hampton Inn - King of Prussia 530 West Dekalb Pike King of Prussia PA 19406
17 Hampton Inn - Meadowlands 250 Harmon Meadow Blvd. Secaucus NJ 07094
26 Hampton Inn - Newark Airport 1128-1138 Spring Street Elizabeth NJ 07207
56 Hampton Inn - San Antonio 11010 Huebnor Road West San Antonio TX 78230
138 Harvest Plaza 3564 Wesley Chapel Road Decatur GA 30034
100 Hawthorne Square Shopping Center 3407 Montrose Blvd. Houston TX 77006
2 Hawthorne Works Shopping Center 4629 West Cermak Cicero IL 60804
109 Heilig Meyers- Charlotte 6300 South Blvd Charlotte NC 28217
135 Heilig Meyers- Las Cruses 1405 South Solano Las Cruces NM 88001
117 Heilig Meyers- National City 300 & 340 National City Blvd. National City CA 91950
116 Heilig Meyers- San Diego 2930 El Cajon Blvd San Diego CA 92104
112 Horizon Center 8035 Snouffer School Road Gaithersburg MD 20879
24 Intermedia-Digex Building 2950 Zanker Road San Jose CA 95134
79 Kennesaw Commons Apartments 419 Idlewood Road Kennesaw GA 30144
113 Lake Sahara Office Building IV 8685 West Sahara Avenue Las Vegas NV 89117
61 Lakes Mechandise Mart 3849-3999 NW 19th Street Lauderdale Lakes FL 33311
37 LEX- Hampton Technology Center I and II 400 Butler Farm Road Hampton VA 23666
49 LEX- Hampton Technology Center III 421 Butler Farm Road Hampton VA 23666
55 Lexington Village Senior Apartments 5000 South 107th Street Greenfield WI 53228
92 Linden Tower Apartments 116-118 E. Franklin Street Richmond VA 23219
76 Lossee Road Industrial Park 2710 Losee Road North Las Vegas NV 89030
78 Lower Pyne Building 92-98 Nassau Street Princeton NJ 07042
128 Main Street Commons 190-194 Main Street Westport CT 06880
132 Manor Ridge Apartments 210 South Main Street Wingate NC 28174
22 MAR Center 141-331 N. Atlantic Boulevard Monterey Park CA 90808
87 Mariner's Village Apartments 2130 Mayport Road Atlantic Beach FL 32233
9 Marlow Heights & Marlow Plaza 4000-4223 28th Ave & 2900 St. Clair Dr. Temple Hills MD 20748
21 Marriott Courtyard - Tampa 102 East Cass Street Tampa FL 33602
32 Miami Garden Villas 12 NE 188th st. Miami FL 33179
80 Motel 6 1105 Pensacola 7226 Plantation Road Pensacola FL 32504
59 Motel 6 270 Pismo Beach 860 4th Street Pismo Beach CA 93449
43 Motel 6 28 St. Barb Goleta 5897 Calle Real Goleta CA 93117
57 Motel 6 414 Gainesville 4000 SW 40th Blvd. Gainesville FL 32608
74 Motel 6 525 Cleveland Macedonia 311 E. Highland Road Macedonia OH 44056
47 Motel 6 69 Cocoa Beach 3701 No. Atlantic Ave. Cocoa Beach FL 32031
60 Mountain View Apartments 5324 Preakness Lane Dallas TX 75211
103 North Forty Estates 1601 North Forty Loop Shreveport LA 71107
93 North Point Apartments 1520 North Point Drive Reston VA 20194
28 Northgate Shopping Center 2800 North Water Street Decatur IL 62526
12 Nottingham Apartments 333 Dominion Drive Katy TX 77450
90 Office Depot 2997 Watson Boulevard Warner Robins GA 31093
105 One South Place Apartments 1311 Berttie-Rand Street Knoxville TN 37920
41 Orangeburg Office 560 Route 303 Orangeburg NY 10962
6 Pacific Islands Apartments 2151 N. Green Valley Parkway Henderson NV 89014
71 Park Plaza Shopping Center 7400-7700 49th Street North Pinellas Park FL 33781
133 Pebble Beach Apartments 402-414 East Aviation Boulevard Universal City TX 78148
142 Pets Plus SC Rt 309 Quakertown PA 18951
82 Petsmart- E. Madison 2216 East Springs Drive East Madison WI 53704
35 Plantation Crossing 12220 - 12250 Sunrise Boulevard Plantation FL 33323
48 Plaza del Sol Apartments 46289 - 46299 Arabia Street Indio CA 92201
<CAPTION>
Monthly
P&I For All
Payments Monthly Balloon
Following P&I Mortgage
Cut-Off Expiration Payment Original Remaining Loans, the
Date of Any Scheduled Term to Term to Maturity Remaining Orig. Remain.
Control Loan Applicable for Mortgage Maturity Maturity Date or Amort. Amort. Amort.
Number Balance IO Periods 6/1/00 Rate or ARD or ARD ARD Term Term Term
- ------ ------- ---------- ------ ---- ------ ------ --- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
42 5,887,149 45,617 45,617 8.5600% 120 116 01/01/2010 356 360 356
99 2,033,004 16,943 16,943 9.2500% 120 118 03/01/2010 358 360 358
14 13,092,210 101,564 101,564 8.5900% 120 119 04/01/2010 359 360 359
40 6,083,736 46,429 46,429 8.3900% 120 115 12/01/2009 355 360 355
27 9,767,555 Steps 73,151.88 8.4734% 300 298 03/01/2025 300 298
139 783,685 6,281 6,281 8.9375% 120 117 02/01/2010 357 360 357
68 3,350,468 25,007 25,007 8.1500% 120 115 12/01/2009 355 360 355
18 11,724,675 88,424 88,424 8.2500% 120 113 10/01/2009 353 360 353
17 11,809,347 89,063 89,063 8.2500% 120 113 10/01/2009 353 360 353
26 9,918,656 74,804 74,804 8.2500% 120 113 10/01/2009 353 360 353
56 4,014,481 30,276 30,276 8.2500% 120 113 10/01/2009 353 360 353
138 788,549 6,499 6,499 9.2500% 120 116 01/01/2010 356 360 356
100 2,029,541 16,154 16,154 8.8600% 120 117 02/01/2010 357 360 357
2 24,802,000 185,632 169,687 8.2100% 120 116 01/01/2010 360 360 360
109 1,607,148 12,275 12,275 7.4200% 156 135 08/01/2011 301 322 301
135 856,024 6,538 6,538 7.4200% 156 135 08/01/2011 301 322 301
117 1,365,680 10,431 10,431 7.4200% 156 135 08/01/2011 301 322 301
116 1,434,954 10,960 10,960 7.4200% 156 135 08/01/2011 301 322 301
112 1,549,564 12,768 12,768 9.2500% 120 117 02/01/2010 357 360 357
24 10,490,791 83,543 83,543 8.8750% 120 118 03/01/2010 358 360 358
79 2,548,480 19,752 19,752 8.5800% 120 119 04/01/2010 359 360 359
113 1,508,629 12,431 12,431 9.2500% 120 117 02/01/2010 357 360 357
61 3,662,748 29,873 29,873 8.6100% 120 116 01/01/2010 296 300 296
37 7,495,237 56,450 56,450 8.2700% 120 119 04/01/2010 359 360 359
49 4,597,073 34,591 34,591 8.2600% 120 119 04/01/2010 359 360 359
55 4,178,520 30,089 30,089 7.7500% 360 352 09/01/2029 360 352
92 2,295,945 17,992 17,992 8.6875% 120 117 02/01/2010 357 360 357
76 2,705,289 21,463 21,463 8.6900% 120 116 01/01/2010 356 360 356
78 2,574,312 19,856 19,856 8.5100% 120 116 01/01/2010 356 360 356
128 997,790 7,689 7,689 8.5000% 120 116 01/01/2010 356 360 356
132 939,405 6,689 6,689 7.6250% 360 352 09/01/2029 360 352
22 10,672,213 77,100 77,100 7.8100% 120 116 01/01/2010 356 360 356
87 2,360,865 17,437 17,437 7.8800% 120 110 07/01/2009 350 360 350
9 16,069,055 108,631 108,631 6.9770% 99 97 06/01/2008 339 341 339
21 10,760,874 87,569 87,569 8.5830% 120 116 01/01/2010 296 300 296
32 8,774,844 65,309 65,309 8.1200% 120 115 12/01/2009 355 360 355
80 2,533,516 Steps 125,378.03 7.2350% 216 193 06/01/2016 247 270 247
59 3,750,686 Steps 185,613.03 7.2350% 216 193 06/01/2016 247 270 247
43 5,580,948 Steps 276,188.62 7.2350% 216 193 06/01/2016 247 270 247
57 3,921,991 Steps 194,090.55 7.2350% 216 193 06/01/2016 247 270 247
74 2,803,998 Steps 138,763.59 7.2350% 216 193 06/01/2016 247 270 247
47 5,130,145 Steps 253,879.37 7.2350% 216 193 06/01/2016 247 270 247
60 3,711,858 28,709 28,709 8.5400% 120 116 01/01/2010 356 360 356
103 1,856,248 14,799 14,799 8.8750% 120 116 01/01/2010 356 360 356
93 2,279,268 15,447 15,447 7.1250% 360 352 09/01/2029 360 352
28 9,246,344 72,802 72,802 8.7400% 120 117 02/01/2010 357 360 357
12 14,750,000 111,019 101,652 8.2700% 120 116 01/01/2010 360 360 360
90 2,309,961 18,462 18,462 8.3900% 153 151 12/01/2012 298 300 298
105 1,721,507 12,082 12,082 7.5000% 240 235 12/01/2019 355 360 355
41 5,939,865 45,643 45,643 8.3300% 120 114 11/01/2009 354 360 354
6 20,800,000 152,333 138,320 7.9800% 180 176 01/01/2015 360 360 360
71 3,094,582 24,343 24,343 8.7300% 120 117 02/01/2010 357 360 357
133 924,127 7,548 7,548 8.6600% 117 116 01/01/2010 299 300 299
142 627,451 5,324 5,324 9.1250% 120 119 04/01/2010 299 300 299
82 2,482,818 20,018 20,018 8.5800% 120 97 06/01/2008 337 360 337
35 7,658,669 58,533 58,533 8.4100% 120 116 01/01/2010 356 360 356
48 4,780,763 36,001 36,001 8.2500% 120 116 01/01/2010 356 360 356
<CAPTION>
Is the
Mortgage Interest
Loan Total Rate Effective Is the
Secured Master Administ- During Date of Mortgage Credit
by a Servicing rative Hyper- Hyper Loan an Lease
Control Ground Fee Fee ARD Amort Amort Actual/360 Loan Loan CTL
Number Lease? Rate Rate Loans Period? Provisions Loan? Seller Flag Guarantor
- ------ ------ ---- ---- ----- ------- ---------- ----- ------ ---- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
42 Y 0.0250% 0.05385% N NA NA Y FUNB
99 N 0.0250% 0.05385% N NA NA Y ML
14 N 0.0250% 0.06885% N NA NA Y FUNB
40 N 0.0250% 0.05385% N NA NA Y FUNB
27 N 0.0250% 0.05385% N NA NA N FUNB CTL Giant Food, Inc.
139 N 0.0250% 0.05385% N NA NA Y FUNB
68 N 0.0250% 0.05385% N NA NA Y FUNB
18 N 0.0250% 0.05385% N NA NA Y FUNB
17 Y 0.0250% 0.05385% N NA NA Y FUNB
26 N 0.0250% 0.05385% N NA NA Y FUNB
56 N 0.0250% 0.05385% N NA NA Y FUNB
138 N 0.0250% 0.05385% N NA NA Y FUNB
100 N 0.0250% 0.05385% N NA NA Y FUNB
2 N 0.0250% 0.05385% N NA NA Y FUNB
109 N 0.0250% 0.05385% N NA NA N ML
135 N 0.0250% 0.05385% N NA NA N ML
117 N 0.0250% 0.05385% N NA NA N ML
116 N 0.0250% 0.05385% N NA NA N ML
112 N 0.0250% 0.05385% N NA NA Y FUNB
24 N 0.0250% 0.05385% N NA NA Y ML
79 N 0.0250% 0.05385% N NA NA Y FUNB
113 N 0.0250% 0.05385% N NA NA Y FUNB
61 N 0.0250% 0.05385% N NA NA Y FUNB
37 N 0.0250% 0.05385% N NA NA Y ML
49 N 0.0250% 0.05385% N NA NA Y ML
55 N 0.0250% 0.05385% N NA NA Y FUNB
92 N 0.0250% 0.05385% N NA NA Y FUNB
76 N 0.0250% 0.05385% N NA NA Y ML
78 N 0.0250% 0.05385% N NA NA Y FUNB
128 N 0.0250% 0.05385% N NA NA Y FUNB
132 N 0.0250% 0.05385% N NA NA N FUNB
22 N 0.0250% 0.05385% N NA NA Y FUNB
87 N 0.0250% 0.05385% N NA NA Y ML
9 N 0.0250% 0.05385% Y 8.97700% 06/01/2008 Y ML
21 Y 0.0250% 0.05385% N NA NA Y FUNB
32 N 0.0250% 0.05385% N NA NA Y FUNB
80 N 0.0250% 0.20500% N NA NA N FUNB CTL Accor SA
59 N 0.0250% 0.20500% N NA NA N FUNB CTL Accor SA
43 N 0.0250% 0.20500% N NA NA N FUNB CTL Accor SA
57 N 0.0250% 0.20500% N NA NA N FUNB CTL Accor SA
74 N 0.0250% 0.20500% N NA NA N FUNB CTL Accor SA
47 N 0.0250% 0.20500% N NA NA N FUNB CTL Accor SA
60 N 0.0250% 0.05385% N NA NA Y FUNB
103 N 0.0250% 0.05385% N NA NA Y FUNB
93 N 0.0250% 0.05385% N NA NA Y FUNB
28 N 0.0250% 0.05385% N NA NA Y FUNB
12 N 0.0250% 0.05385% N NA NA Y FUNB
90 N 0.0250% 0.05385% N NA NA Y FUNB
105 N 0.0250% 0.05385% N NA NA N FUNB
41 N 0.0250% 0.05385% N NA NA Y ML
6 N 0.0250% 0.05385% N NA NA Y FUNB
71 N 0.0250% 0.05385% N NA NA Y FUNB
133 N 0.0250% 0.05385% N NA NA Y FUNB
142 N 0.0250% 0.05385% N NA NA Y FUNB
82 N 0.0250% 0.05385% N NA NA N ML
35 N 0.0250% 0.05385% N NA NA Y FUNB
48 N 0.0250% 0.05385% N NA NA Y FUNB
<CAPTION>
Annual
Monthly Dep
Replacement Annual Annual Replace- Upfront Initial
Control Reserves Tax Insurance ment TI/LC at Repair
Number Escrow Escrow Escrow Reserve Closing Reserves
- ------ ------ ------ ------ ------- ------- --------
<S> <C> <C> <C> <C> <C> <C>
42 2250.00 81,638.28 9,500.04 27,000.00 0.00 56,500.00
99 270.00 0.00 0.00 3,240.00 35,000.00 0.00
14 2190.67 143,489.52 34,230.96 26,288.04 0.00 6,750.00
40 577.86 100,155.36 24,301.08 6,934.32 0.00 12,300.00
27 0.00 0.00 0.00 0.00 0.00 0.00
139 395.83 11,512.08 1,104.96 4,749.96 0.00 5,687.50
68 2000.00 71,497.56 5,319.24 24,000.00 0.00 0.00
18 12606.12 107,943.96 0.00 151,273.44 0.00 250.00
17 14170.83 174,627.00 0.00 168,880.92 0.00 11,812.50
26 12977.52 177,540.00 0.00 160,596.96 0.00 2,906.25
56 6677.32 103,148.52 9,888.96 80,244.00 0.00 0.00
138 180.50 7,953.60 2,676.00 2,166.00 0.00 0.00
100 119.35 44,722.08 6,369.00 1,432.20 50,000.00 0.00
2 3100.69 227,138.40 45,825.96 37,208.28 0.00 84,268.75
109 0.00 0.00 0.00 0.00 0.00 0.00
135 0.00 0.00 0.00 0.00 0.00 0.00
117 0.00 0.00 0.00 0.00 0.00 0.00
116 0.00 0.00 0.00 0.00 0.00 0.00
112 377.12 26,940.84 3,990.00 4,525.44 0.00 0.00
24 1378.00 8,640.51 1,812.80 16,536.00 500,000.00 0.00
79 1000.00 30,347.16 15,500.04 12,000.00 0.00 14,125.00
113 150.71 13,083.48 2,300.04 1,808.52 0.00 0.00
61 1728.39 60,437.28 23,072.40 20,740.68 0.00 1,500.00
37 839.00 4,694.00 1,285.00 10,068.00 0.00 0.00
49 461.00 1,069.00 720.00 5,532.00 0.00 0.00
55 $1750 - 1st 5 yrs, $2250 next 5 yrs, $2750 til MD 10,259.04 12,194.04 21,000.00 0.00 0.00
92 875.00 26,864.04 4,599.96 10,500.00 0.00 4,862.50
76 860.00 2,720.17 297.84 10,320.00 0.00 0.00
78 315.13 76,208.28 5,043.00 3,781.56 0.00 13,000.00
128 127.01 23,673.48 3,417.00 1,524.12 0.00 0.00
132 534 - first 5 years, 667 - next 6 years, $800 til MD 14,019.36 2,468.40 6,408.00 0.00 0.00
22 855.21 129,279.12 27,963.96 10,262.52 0.00 10,000.00
87 2500.00 3,175.00 1,500.00 30,000.00 0.00 50,000.00
9 7150.00 18,017.58 3,443.66 85,800.00 0.00 32,393.62
21 13217.30 152,798.88 28,109.16 160,245.00 0.00 0.00
32 7833.33 232,056.96 63,121.80 93,999.96 0.00 25,375.00
80 0.00 0.00 0.00 0.00 0.00 0.00
59 0.00 0.00 0.00 0.00 0.00 0.00
43 0.00 0.00 0.00 0.00 0.00 0.00
57 0.00 0.00 0.00 0.00 0.00 0.00
74 0.00 0.00 0.00 0.00 0.00 0.00
47 0.00 0.00 0.00 0.00 0.00 0.00
60 4333.33 51,514.68 21,611.88 51,999.96 0.00 69,875.00
103 1375.00 29,858.88 7,585.92 16,500.00 0.00 21,100.00
93 800 - first 5 years, 1000 - next 6 years, $1200 til MD 41,441.04 4,134.00 9,600.00 0.00 0.00
28 1715.66 72,099.60 15,140.04 20,587.92 125,000.00 0.00
12 4433.33 352,659.12 18,714.00 53,199.96 0.00 0.00
90 0.00 0.00 0.00 0.00 0.00 0.00
105 $1,200 - 1st 5 yrs, $1,500 next 6 yrs, $1,800 til MD 42,407.16 10,805.04 14,400.00 0.00 0.00
41 1870.00 3,942.48 1,151.00 22,440.00 516,000.00 20,000.00
6 7245.33 196,250.28 29,510.04 86,943.96 0.00 0.00
71 2085.50 149,975.04 18,692.40 25,026.00 $200,000 (LOC) 9,375.00
133 1270.83 18,278.88 7,580.04 15,249.96 0.00 5,125.00
142 262.50 25,651.56 2,196.00 3,150.00 0.00 9,375.00
82 0.00 0.00 0.00 0.00 0.00 0.00
35 587.35 143,492.04 37,147.20 7,048.20 0.00 0.00
48 3571.25 94,135.80 14,216.04 42,855.00 0.00 0.00
Initial
Environ- Future
Control mental TI/LC
Number Reserves Escrows?
- ------ -------- --------
42 0.00 NA
99 0.00 NA
14 0.00 NA
40 0.00 NA
27 0.00 NA
139 0.00 NA
68 0.00 NA
18 0.00 NA
17 0.00 NA
26 625,000.00 NA
56 0.00 NA
138 0.00 NA
100 625.00 Y - See Footnote 1
2 0.00 NA
109 0.00 NA
135 0.00 NA
117 0.00 NA
116 0.00 NA
112 0.00 NA
24 0.00 NA
79 0.00 NA
113 0.00 Y - See Footnote 1
61 0.00 NA
37 0.00 Y - See Footnote 1
49 0.00 Y - See Footnote 1
55 0.00 NA
92 0.00 NA
76 0.00 NA
78 0.00 NA
128 0.00 NA
132 0.00 NA
22 0.00 NA
87 0.00 NA
9 0.00 NA
21 0.00 NA
32 0.00 NA
80 0.00 NA
59 0.00 NA
43 0.00 NA
57 0.00 NA
74 0.00 NA
47 0.00 NA
60 0.00 NA
103 0.00 NA
93 0.00 NA
28 0.00 NA
12 0.00 NA
90 0.00 NA
105 0.00 NA
41 0.00 NA
6 0.00 NA
71 0.00 NA
133 0.00 NA
142 0.00 NA
82 0.00 NA
35 0.00 Y - See Footnote 1
48 0.00 NA
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Control Name Zip
Number Property Address City State Code
- ------ -------- ------- ---- ----- ----
<S> <C> <C> <C> <C> <C>
98 Prince William Plaza 14310 and 14440 Jefferson Davis Highway Woodbridge VA 22191
96 Ramona Industrial Center 740 Driving Park Avenue Rochester NY 14215
51 Residence Inn - Greenville 120 Milestone Way Greenville SC 29615
33 Riverpark II 1200 River Road Miquon PA 19452
83 Riverstone Apartments 1870 South Atlanta Road Smyrna GA 30080
102 Sable Point Apartments Phase II Sable Point Drive Hurricane WV 25526
125 San Pedro Mobile Home Park 87401 State Road 905 Islamorada FL 33036
5 San Tropez Apartments 8025 West Russell Road Las Vegas NV 89113
15 School Street Shopping Center 265 Ellington Road East Hartford CT 06108
46 Shaw's Plaza 620 Middle Street Weymouth MA 02189
54 Shillington Shopping Center 500 East Lancaster Avenue Shillington PA 19607
52 Shoppes II at Riverdale Commons 12465 -12485 Poppy Street Coon Rapids MN 55433
62 Skipper Palms Shopping Center 2526-2560 Bearss Avenue Tampa FL 33618
101 Stadium Village Shopping Center 917-935 Washington Avenue S.E. Minneapolis MN 55414
13 Sterling University Arbors 1255 South College Street Auburn AL 36830
131 Studer Arms Apartments 1600 Center St. Jupiter FL 33458
114 Suffolk West Shopping Center 817 West Constance Road Suffolk VA 23434
10 The Atrium at Gainesville 2434 NW 41st Street Gainesville FL 32606
97 The Lighthouse Inn 3208 NE 11st Street Pompano Beach FL 33062
58 The Village at Johnson Creek Apartments 400 S. Collins Street Arlington TX 76010
3 Thomson Consumer Electronics 10330 North Meridian Street Indianapolis IN 46290
16 Tiger Plaza Apartments 4445 Alvin Dark Baton Rouge LA 70820
65 Town Square Shopping Center 2001 Naperville Road Wheaton IL 60187
143 Trinity Park MHP 1800 Meridian Ct. Conroe TX 77301
38 Turtle Creek 121 Hickory Trace Dr. Nashville TN 37211
85 U-Haul Center City 1201 Washington Avenue Philadelphia PA 19147
126 U-Haul Conroe Center 1305 South I-45 Conroe TX 77301
89 U-Haul CT Clark Avenue 6000 Clark Avenue Cleveland OH 44102
108 U-Haul Memorial 1010 South Memorial Drive Tulsa OK 74112
72 U-Haul University 6701 South Dixie Highway Miami FL 33146
110 University Commons 600-602 Sherman Street Akron OH 44311
45 University Court Apartments 2102 N. Walnut St. Ellensburg WA 98926
50 Vanderbilt Court Apartments 12630 Ashford Point Dr. Houston TX 77082
129 Victory Place Apartments 3144 Chateau Drive East Point GA 30344
141 Vista Plaza 3516-3544 East Southern Avenue Mesa AZ 85204
1 Washingtonian Center 15 Grand Corner Avenue Gaithersburg MD 20878
130 Wellington Place Shopping Center 200-240 Grapevine Hwy Hurst TX 76054
30 Westlink Village Apartments 505 North Tyler Street Wichita KS 67212
11 Wildwood Forest Apartments 455 Wildwood Forest Drive Spring TX 77380
104 Winston Plaza 31760 - 31762 Mission Trail Road Lake Elsinore CA 92530
<CAPTION>
Monthly
P&I For All
Payments Monthly Balloon
Following P&I Mortgage
Cut-Off Expiration Payment Original Remaining Loans, the
Date of Any Scheduled Term to Term to Maturity Remaining Orig. Remain.
Control Loan Applicable for Mortgage Maturity Maturity Date or Amort. Amort. Amort.
Number Balance IO Periods 6/1/00 Rate or ARD or ARD ARD Term Term Term
- ------ ------- ---------- ------ ---- ------ ------ --- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
98 2,096,769 17,623 17,623 9.0000% 120 118 03/01/2010 298 300 298
96 2,166,198 17,547 17,547 8.6250% 120 112 09/01/2009 304 312 304
51 4,490,252 34,866 34,866 8.5830% 120 116 01/01/2010 356 360 356
33 8,717,303 67,526 67,526 8.4300% 120 116 01/01/2010 356 360 356
83 2,473,266 18,754 18,754 8.3200% 120 115 12/01/2009 355 360 355
102 1,895,743 13,285 13,285 7.5000% 180 177 02/01/2015 357 360 357
125 1,134,703 9,042 9,042 8.8700% 120 116 01/01/2010 356 360 356
5 21,825,000 164,271 150,411 8.2700% 120 118 03/01/2010 360 360 360
15 12,857,068 100,317 100,317 8.6400% 120 117 02/01/2010 357 360 357
46 5,246,639 39,368 39,368 8.2300% 120 119 04/01/2010 359 360 359
54 4,285,722 32,683 32,683 8.3750% 120 114 11/01/2009 354 360 354
52 4,342,598 34,564 34,564 8.8600% 120 117 02/01/2010 357 360 357
62 3,646,555 28,389 28,389 8.6250% 120 118 03/01/2010 358 360 358
101 1,948,427 15,901 15,901 9.1500% 120 118 03/01/2010 358 360 358
13 13,120,000 97,921 89,435 8.1800% 120 119 04/01/2010 360 360 360
131 964,445 7,592 7,592 8.7500% 120 119 04/01/2010 359 360 359
114 1,497,718 12,504 12,504 9.4000% 120 117 02/01/2010 357 360 357
10 15,864,611 121,919 121,919 8.4700% 120 116 01/01/2010 356 360 356
97 2,098,055 16,431 16,431 8.6900% 120 118 03/01/2010 358 360 358
58 3,904,270 28,720 28,720 8.0000% 180 176 01/01/2015 356 360 356
3 24,605,207 190,005 190,005 8.5400% 144 143 04/01/2012 359 360 359
16 12,415,000 96,563 89,233 8.6250% 120 118 03/01/2010 360 360 360
65 3,491,549 25,987 25,987 8.1250% 120 116 01/01/2010 356 360 356
143 516,955 4,121 4,121 8.8750% 120 116 01/01/2010 356 360 356
38 7,286,842 56,545 56,545 8.5800% 120 117 02/01/2010 357 360 357
85 2,427,767 20,094 20,094 8.8200% 120 119 04/01/2010 299 300 299
126 1,057,028 8,749 8,749 8.8200% 120 119 04/01/2010 299 300 299
89 2,343,844 19,399 19,399 8.8200% 120 119 04/01/2010 299 300 299
108 1,613,516 13,355 13,355 8.8200% 120 119 04/01/2010 299 300 299
72 3,061,184 25,336 25,336 8.8200% 120 119 04/01/2010 299 300 299
110 1,598,595 12,725 12,725 8.8700% 120 118 03/01/2010 358 360 358
45 5,308,713 40,634 40,634 8.4400% 120 118 03/01/2010 358 360 358
50 4,587,216 34,494 34,494 8.2300% 120 115 12/01/2009 355 360 355
129 986,851 7,654 7,654 8.5700% 120 116 01/01/2010 356 360 356
141 723,122 5,575 5,575 8.5000% 120 115 12/01/2009 355 360 355
1 39,387,474 273,490 273,490 7.4000% 120 116 01/01/2010 356 360 356
130 981,579 8,445 8,445 9.2900% 120 118 03/01/2010 298 300 298
30 9,120,000 66,475 60,268 7.9300% 120 115 12/01/2009 360 360 360
11 15,654,661 116,078 116,078 8.0800% 120 115 12/01/2009 355 360 355
104 1,759,235 14,496 14,496 9.2500% 120 117 02/01/2010 357 360 357
<CAPTION>
Is the
Mortgage Interest
Loan Total Rate Effective Is the
Secured Master Administ- During Date of Mortgage Credit
by a Servicing rative Hyper- Hyper Loan an Lease
Control Ground Fee Fee ARD Amort Amort Actual/360 Loan Loan CTL
Number Lease? Rate Rate Loans Period? Provisions Loan? Seller Flag Guarantor
- ------ ------ ---- ---- ----- ------- ---------- ----- ------ ---- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
98 N 0.0250% 0.05385% N NA NA Y FUNB
96 N 0.0250% 0.05385% N NA NA Y FUNB
51 Y 0.0250% 0.05385% N NA NA Y FUNB
33 N 0.0250% 0.05385% N NA NA Y ML
83 N 0.0250% 0.05385% N NA NA Y FUNB
102 N 0.0250% 0.05385% N NA NA N FUNB
125 N 0.0250% 0.05385% N NA NA Y FUNB
5 N 0.0250% 0.05385% N NA NA Y FUNB
15 N 0.0250% 0.05385% N NA NA Y FUNB
46 N 0.0250% 0.05385% N NA NA Y FUNB
54 N 0.0250% 0.05385% N NA NA Y FUNB
52 N 0.0250% 0.05385% N NA NA Y FUNB
62 N 0.0250% 0.05385% N NA NA Y FUNB
101 N 0.0250% 0.05385% N NA NA Y FUNB
13 N 0.0250% 0.05385% N NA NA Y FUNB
131 N 0.0250% 0.05385% N NA NA Y FUNB
114 Y 0.0250% 0.05385% N NA NA Y FUNB
10 N 0.0250% 0.05385% N NA NA Y FUNB
97 N 0.0250% 0.05385% N NA NA Y FUNB
58 N 0.0250% 0.05385% N NA NA Y FUNB
3 N 0.0250% 0.05385% Y 10.54000% 04/01/2012 Y ML
16 N 0.0250% 0.06885% N NA NA Y FUNB
65 Y 0.0250% 0.05385% N NA NA Y FUNB
143 N 0.0250% 0.05385% N NA NA Y FUNB
38 N 0.0250% 0.05385% N NA NA Y FUNB
85 Y (See Footnote 2) 0.0250% 0.05385% N NA NA Y FUNB
126 Y (See Footnote 2) 0.0250% 0.05385% N NA NA Y FUNB
89 Y (See Footnote 2) 0.0250% 0.05385% N NA NA Y FUNB
108 Y (See Footnote 2) 0.0250% 0.05385% N NA NA Y FUNB
72 Y (See Footnote 2) 0.0250% 0.05385% N NA NA Y FUNB
110 N 0.0250% 0.05385% N NA NA Y FUNB
45 N 0.0250% 0.05385% N NA NA Y FUNB
50 N 0.0250% 0.05385% N NA NA Y FUNB
129 N 0.0250% 0.05385% N NA NA Y FUNB
141 N 0.0250% 0.05385% N NA NA Y FUNB
1 N 0.0250% 0.05385% N NA NA Y FUNB
130 N 0.0250% 0.05385% N NA NA Y FUNB
30 N 0.0250% 0.05385% N NA NA Y FUNB
11 N 0.0250% 0.05385% N NA NA Y FUNB
104 N 0.0250% 0.05385% N NA NA Y FUNB
<CAPTION>
Is the
Mortgage
Loan
insured Cross
by a Collater- Is the Is the
Lease alized Mortgage Mortgage Is the
Enhance- and Is the Loan a Loan Mortgage
ment Cross Mortgage Semi- secured Loan an
Policy Defaulted Loan a Annual by a Interest
Control or RVI Loan Defeasance Mortgage letter of Reserve
Number Policy? Flag Loan? Loan? credit? Loan? Lockbox
- ------ ------- ---- ----- ----- ------- ----- -------
<S> <C> <C> <C> <C> <C> <C> <C>
98 N Y N N Y
96 N Y N N Y
51 N Y N N Y
33 N Y N N Y Hard
83 N Y N N Y
102 N N N N N
125 N Y N N Y
5 N Y N N Y
15 N Y N N Y
46 N Y N N Y
54 N Y N N Y
52 N Y N N Y
62 N Y N N Y
101 N Y N N Y
13 N Y N N Y
131 N Y N N Y
114 N Y N N Y
10 N Y N N Y
97 N Y N N Y
58 N N N N Y
3 N Y N N Y Hard
16 N Y N N Y
65 N Y N N Y
143 N Y N N Y
38 N Y N N Y
85 N U-Haul Pool III Y N N Y
126 N U-Haul Pool III Y N N Y
89 N U-Haul Pool III Y N N Y
108 N U-Haul Pool III Y N N Y
72 N U-Haul Pool III Y N N Y
110 N Y N N Y
45 N Y N N Y
50 N N N N Y
129 N Y N N Y
141 N Y N N Y
1 N Y N N Y
130 N Y N N Y
30 N Y N N Y
11 N Y N N Y
104 N Y N N Y
<CAPTION>
Annual
Monthly Dep
Replacement Annual Annual Replace- Upfront Initial
Control Reserves Tax Insurance ment TI/LC at Repair
Number Escrow Escrow Escrow Reserve Closing Reserves
- ------ ------ ------ ------ ------- ------- --------
<S> <C> <C> <C> <C> <S> <C>
98 1137.15 41,459.40 5,222.04 13,645.80 0.00 106,968.75
96 1322.14 102,276.12 4,413.00 15,865.68 0.00 45,725.00
51 6044.14 47,328.00 11,301.24 74,819.40 0.00 0.00
33 1299.00 0.00 0.00 0.00 0.00 938,500.00
83 1452.00 19,318.20 8,712.00 17,424.00 0.00 17,018.75
102 625.00 39,654.00 7,623.48 12,800.04 0.00 0.00
125 268.75 11,842.80 2,296.92 3,225.00 0.00 10,937.50
5 7000.00 210,464.64 30,000.00 84,000.00 0.00 0.00
15 1949.31 181,203.48 36,824.04 23,391.72 0.00 30,250.00
46 994.84 145,943.28 9,835.92 11,938.08 0.00 96,093.75
54 1131.45 92,396.04 12,867.00 13,577.40 0.00 186,948.75
52 351.44 33,871.08 7,013.04 4,217.28 0.00 0.00
62 1112.28 81,597.12 14,688.96 13,347.36 0.00 38,585.00
101 162.83 21,701.64 3,042.96 1,953.96 40,000.00 0.00
13 3750.00 107,391.96 0.00 45,000.00 0.00 5,875.00
131 625.00 13,375.08 7,623.48 7,500.00 0.00 0.00
114 594.48 29,414.52 2,361.00 7,133.76 0.00 3,750.00
10 5020.83 319,659.96 32,844.00 60,249.96 0.00 0.00
97 958.33 21,858.84 13,727.16 11,499.96 0.00 875.00
58 2333.33 85,104.00 18,206.04 27,999.96 0.00 0.00
3 0.00 0.00 0.00 0.00 0.00 0.00
16 6250.00 44,292.84 59,054.04 75,000.00 0.00 9,968.75
65 141.51 43,721.64 2,499.96 1,698.12 0.00 0.00
143 225.00 2,975.40 1,437.96 2,700.00 0.00 7,312.50
38 6906.67 164,757.96 40,902.00 82,880.04 0.00 9,812.50
85 757.79 0.00 3,848.04 8,938.92 0.00 12,000.00
126 499.00 0.00 2,714.04 5,988.00 0.00 3,800.00
89 845.44 0.00 3,843.00 10,145.28 0.00 8,575.00
108 609.33 0.00 6,915.96 7,311.96 0.00 0.00
72 626.99 0.00 6,911.04 7,395.96 0.00 5,750.00
110 750.00 33,078.84 4,947.96 9,000.00 0.00 0.00
45 2125.00 38,661.72 11,826.96 25,500.00 0.00 0.00
50 3075.00 92,209.20 22,978.92 36,900.00 0.00 38,725.00
129 1104.00 9,728.64 5,282.04 13,248.00 0.00 62,032.50
141 195.82 18,028.80 2,705.04 2,349.84 0.00 1,875.00
1 0.00 668,782.68 10,906.08 0.00 0.00 0.00
130 317.66 30,113.16 2,062.08 3,811.92 $43,200 (LOC) 12,912.50
30 4000.00 72,549.00 20,870.04 48,000.00 0.00 0.00
11 0.00 203,825.88 0.00 0.00 0.00 0.00
104 497.96 20,467.56 5,070.96 5,975.52 $100,000 (LOC) 937.50
Initial
Environ- Future
Control mental TI/LC
Number Reserves Escrows?
- ------ -------- --------
98 0.00 Y - See Footnote 1
96 0.00 Y - See Footnote 1
51 0.00 NA
33 24,744.00 NA
83 0.00 NA
102 0.00 NA
125 0.00 NA
5 0.00 NA
15 0.00 NA
46 0.00 NA
54 0.00 Y - See Footnote 1
52 0.00 NA
62 300,000.00 NA
101 0.00 NA
13 0.00 NA
131 0.00 NA
114 0.00 NA
10 0.00 NA
97 0.00 NA
58 0.00 NA
3 0.00 NA
16 0.00 NA
65 0.00 NA
143 0.00 NA
38 5,250.00 NA
85 0.00 NA
126 0.00 NA
89 0.00 NA
108 0.00 NA
72 0.00 NA
110 0.00 NA
45 0.00 NA
50 0.00 NA
129 0.00 NA
141 0.00 NA
1 0.00 NA
130 0.00 NA
30 0.00 NA
11 0.00 NA
104 0.00 NA
</TABLE>
(1) In addition to any such escrows funded at loan closing for potential TI/LC
expenses, these loans require funds to be escrowed during some or all of
the loan term for TI/LC expenses which may be incurred during the loan
term. In certain instances, escrowed funds may be released to borrower upon
satisfaction of certain leasing conditions.
(2) Fee interest subordinate to the leasehold interest (ie fee owner has joined
in the mortgage)
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST SERIES 2000-C1
MORTGAGE LOAN SCHEDULE CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS AND
ALL LOANS MORTGAGED PROPERTIES
<TABLE>
<CAPTION>
Control Name Zip
Number Property Address City State Code
- ------ -------- ------- ---- ----- ----
<S> <C> <C> <C> <C> <C>
111 102-104 East 116th Street 102-104 East 116th Street New York NY 10035
84 103rd Street Family Center 6733 103rd Street Jacksonville FL 32210
140 1342 N. Detroit 1342 N. Detroit Street Hollywood CA 90069
75 1390-1400/1409-1429/2074-2100 Park Street Various Hartford CT 06106
75.1 1390-1400 Park Street 1390-1400 Park Street Hartford CT 06106
75.2 2074-2100 Park Street (aka 340 Prospect Ave.) 2074-2100 Park Street (aka 340 Prospect Ave.) Hartford CT 06106
75.3 1409-1429 Park Street 1409-1429 Park Street Hartford CT 06106
120 170 Portola Road 170 Portola Valley Road Portola Valley CA 94028
144 204 Lakeview Avenue 204 Lakeview Avenue Clifton NJ 07011
66 222 West 37th Street 222 West 37th Street New York NY 10018
119 5 Daniel Road 5 Daniel Road Fairfield NJ 07004
145 554-562 Valley Road 554-562 Valley Road West Orange NJ 07052
134 63 Elm Street Apartments 63 Elm Street Montclair NJ 07042
115 866 Westmount Apts. 866 Westmount Drive West Hollywood CA 90069
137 Alma School Shopping Center 2950 South Alma School Mesa AZ 85210
122 Amber Square Apartments 2803 Woodbury Drive San Antonio TX 78217
136 Amberwood Apartments Phase II 1308 - 1309 Amberwood Drive Norfolk NE 68701
69 Ashler Oaks Apartments 4100 Parkdale Drive San Antonio TX 78229
91 Ashton Hall ALF 1155 Hwy 29S Lawrenceville GA 30245
19 Atrium Mall @ James R. Thompson Center 100 W. Randolph Street Chicago IL 60601
107 Bear Valley Shopping Center 25030-25100 Allesandro Blvd Moreno Valley CA 92553
20 Beltway Plaza Retail Center 9310-9340 South Eastern Avenue Henderson NV 89014
39 Big V Shopping Center 1129-1131 Campbell Avenue West Haven CT 06516
4 BR- Peartree Square 691 Co-op City Blvd Bronx NY 10475
29 Bristol Place Shopping Center 3310-3398 South Bristol Street Santa Ana CA 92701
127 BT Self Storage 126 Hamburg Turnpike Bloomingdale NJ 07403
88 Campus Walk Apartments 950 Hudson Road Marietta GA 30060
118 Carlton Court Apartments 5024 E. Thomas Rd Phoenix AZ 85018
36 Carrboro Plaza Shopping Center 104 West NC Highway 54 Carrboro NC 27510
81 Cedar Street Design Center 601, 619 & 623 Cedar Street Charlotte NC 28202
95 Cesery Apartments- Pool A Various Jacksonville FL 32211
95.1 Monterey Manor Garden 1038 Caliente Drive Jacksonville FL 32211
95.2 Matanzas Apartments 5642 Matanzas Way Jacksonville FL 32211
95.3 Georgetown Apts. 5611 Holly Bell Drive Jacksonville FL 32211
25 Cesery Apartments- Pool B Various Jacksonville FL Various
25.1 Greenbrier Apartments 3031 Tall Pine Lane W. Jacksonville FL 32211
25.2 Forest Park 3206 Justina Road Jacksonville FL 32211
25.3 Colony Apartments 5814 Merrill Road Jacksonville FL 32277
25.4 Sweetbriar I and II 5736 Merrill Road Jacksonville FL 32277
25.5 Villa Capri I and II 3102 Tall Pine Lane Jacksonville FL 32211
67 Chapin Center 1419 Chapin Road Chapin SC 29036
86 Chaska Business Center 343 82nd Street Chaska MN 55318
23 Chateau Vestavia 2435 Columbiana Road Birmingham AL 35216
7 Club Lake Pointe Apartments 555 Lakeview Drive Coral Springs FL 33071
53 College Park Shopping Center 5110-5158 South Rural Road Tempe AZ 85282
94 Colonial Shopping Center 430 North Country Road St. James NY 11780
63 Comfort Inn-Bossier City, LA 1100 Delhi Avenue Bossier City LA 71111
8 Covina Town Center AMC Theaters 1414 N. Azusa Avenue Covina CA 91722
44 Crescent Cove Apartments 2500 Crescent Cove Drive Evans CO 80620
121 Crystal Trace Apartments 1901 South 26th Street Ft. Pierce FL 34947
73 Eagle Rock II 3760 University Blvd. South Jacksonville FL 32216
34 Eatontown Plaza 50 Route 36 Eatontown NJ 07724
77 Edgewood Apartments 1601 Highway 90 West Sealy TX 77474
123 Elm Lake Apartments 6318 14th Street East Bradenton FL 34203
124 Elm Tree Apartments 3401 South 200 East Salt Lake City UT 84115
31 Engineering Technology Building 769, 777, and 789 Chicago Road Troy MI 48083
106 Enterprise Center 11833 Canon Boulevard Newport News VA 23606
<CAPTION>
Monthly
P&I For All
Payments Monthly Balloon
Following P&I Mortgage
Cut-Off Expiration Payment Original Remaining Loans, the
Date of Any Scheduled Term to Term to Maturity Remaining Orig. Remain.
Control Loan Applicable for Mortgage Maturity Maturity Date or Amort. Amort. Amort.
Number Balance IO Periods 6/1/00 Rate or ARD or ARD ARD Term Term Term
- ------ ------- ---------- ------ ---- ------ ------ --- ---- ---- ----
<C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
111 1,572,089 12,341 12,341 8.7200% 120 119 04/01/2010 359 360 359
84 2,441,510 20,042 20,042 9.0800% 120 118 03/01/2010 358 360 358
140 779,532 6,025 6,025 8.5500% 120 119 04/01/2010 359 360 359
75 2,797,397 23,020 23,020 8.7500% 120 119 04/01/2010 299 300 299
75.1
75.2
75.3
120 1,298,840 10,910 10,910 9.0000% 120 119 04/01/2010 299 300 299
144 298,823 2,326 2,326 8.6250% 120 119 04/01/2010 359 360 359
66 3,397,128 27,357 27,357 9.0000% 120 118 03/01/2010 358 360 358
119 1,361,163 10,731 10,731 8.7500% 120 116 01/01/2010 356 360 356
145 211,884 1,706 1,706 9.0000% 120 119 04/01/2010 359 360 359
134 883,269 7,121 7,121 9.0000% 120 116 01/01/2010 356 360 356
115 1,471,016 11,175 11,175 8.3400% 120 115 12/01/2009 355 360 355
137 793,710 6,448 6,448 9.0900% 120 117 02/01/2010 357 360 357
122 1,246,156 9,493 9,493 8.3750% 120 116 01/01/2010 356 360 356
136 837,617 6,252 6,252 8.1500% 120 115 12/01/2009 355 360 355
69 3,234,819 24,905 24,905 8.4900% 120 116 01/01/2010 356 360 356
91 2,298,776 18,714 18,714 9.1250% 120 119 04/01/2010 359 360 359
19 11,500,000 88,670 81,746 8.5300% 120 117 02/01/2010 360 360 360
107 1,618,298 12,996 12,996 8.9600% 120 117 02/01/2010 357 360 357
20 11,472,586 85,830 85,830 8.1800% 120 116 01/01/2010 356 360 356
39 6,856,033 50,575 50,575 8.0300% 120 116 01/01/2010 356 360 356
4 22,221,654 178,175 178,175 8.8125% 120 117 02/01/2010 357 360 357
29 9,142,500 70,817 65,369 8.5800% 120 117 02/01/2010 360 360 360
127 1,052,435 9,309 9,309 9.6250% 120 117 02/01/2010 297 300 297
88 2,355,808 18,188 18,188 8.5200% 120 116 01/01/2010 356 360 356
118 1,362,684 10,861 10,861 8.8750% 120 117 02/01/2010 357 360 357
36 7,495,372 57,191 57,191 8.4100% 120 119 04/01/2010 359 360 359
81 2,504,881 20,525 20,525 8.6900% 120 118 03/01/2010 298 300 298
95 2,245,365 17,658 17,658 8.6000% 120 117 02/01/2010 357 360 357
95.1
95.2
95.3
25 9,979,399 78,478 78,478 8.6000% 120 117 02/01/2010 357 360 357
25.1
25.2
25.3
25.4
25.5
67 3,366,177 28,396 28,396 8.7500% 120 119 04/01/2010 275 276 275
86 2,425,542 21,585 21,585 8.1000% 59 54 11/01/2004 211 216 211
23 10,527,405 82,094 82,094 8.6300% 120 116 01/01/2010 356 360 356
7 19,711,917 146,261 146,261 8.0920% 120 116 01/01/2010 356 360 356
53 4,335,398 33,409 33,409 8.5000% 180 176 01/01/2015 356 360 356
94 2,254,709 17,982 17,982 8.8750% 120 115 12/01/2009 355 360 355
63 3,631,431 30,257 30,257 8.8500% 120 114 11/01/2009 294 300 294
8 17,379,334 132,975 132,975 8.4400% 120 119 04/01/2010 359 360 359
44 5,344,795 39,892 39,892 8.1500% 120 115 12/01/2009 355 360 355
121 1,297,263 10,181 10,181 8.7000% 120 116 01/01/2010 356 360 356
73 2,938,780 22,971 22,971 8.6600% 120 117 02/01/2010 357 360 357
34 7,995,193 61,740 61,740 8.5400% 120 119 04/01/2010 359 360 359
77 2,593,550 20,191 20,191 8.6250% 120 118 03/01/2010 358 360 358
123 1,169,125 8,674 8,674 7.8750% 336 330 11/01/2027 336 330
124 1,147,021 8,843 8,843 8.5000% 120 115 12/01/2009 355 360 355
31 8,875,539 66,817 66,817 8.1250% 120 116 01/01/2010 356 360 356
106 1,664,958 13,138 13,138 8.7500% 120 114 11/01/2009 354 360 354
<CAPTION>
Is the
Mortgage Interest
Loan Total Rate Effective Is the
Secured Master Administ- During Date of Mortgage Credit
by a Servicing rative Hyper- Hyper Loan an Lease
Control Ground Fee Fee ARD Amort Amort Actual/360 Loan Loan CTL
Number Lease? Rate Rate Loans Period? Provisions Loan? Seller Flag Guarantor
- ------ ------ ---- ---- ----- ------- ---------- ----- ------ ---- ---------
<S> <C> <C> <C> <C> <C> <S> <C> <C> <C> <C>
111 N 0.0250% 0.05385% N NA NA Y FUNB
84 N 0.0250% 0.05385% N NA NA Y ML
140 N 0.0250% 0.05385% N NA NA Y FUNB
75 N 0.0250% 0.05385% N NA NA Y ML
75.1 ML
75.2 ML
75.3 ML
120 Y 0.0250% 0.05385% N NA NA Y FUNB
144 N 0.0250% 0.05385% N NA NA Y FUNB
66 N 0.0250% 0.05385% N NA NA Y ML
119 N 0.0250% 0.05385% N NA NA Y FUNB
145 N 0.0250% 0.05385% N NA NA Y FUNB
134 N 0.0250% 0.05385% N NA NA Y FUNB
115 N 0.0250% 0.05385% N NA NA Y FUNB
137 N 0.0250% 0.05385% N NA NA Y FUNB
122 N 0.0250% 0.05385% N NA NA Y FUNB
136 N 0.0250% 0.05385% N NA NA Y FUNB
69 N 0.0250% 0.05385% N NA NA Y FUNB
91 N 0.0250% 0.05385% N NA NA Y FUNB
19 Y 0.0250% 0.05385% N NA NA Y FUNB
107 N 0.0250% 0.05385% N NA NA Y FUNB
20 N 0.0250% 0.05385% N NA NA Y FUNB
39 N 0.0250% 0.05385% N NA NA Y FUNB
4 N 0.0250% 0.05385% Y 10.81250% 02/01/2010 Y ML
29 N 0.0250% 0.05385% N NA NA Y FUNB
127 N 0.0250% 0.05385% N NA NA Y FUNB
88 N 0.0250% 0.05385% N NA NA Y FUNB
118 N 0.0250% 0.05385% N NA NA Y FUNB
36 N 0.0250% 0.05385% N NA NA Y ML
81 N 0.0250% 0.05385% N NA NA Y FUNB
95 N 0.0250% 0.05385% N NA NA Y ML
95.1 ML
95.2 ML
95.3 ML
25 N 0.0250% 0.05385% N NA NA Y ML
25.1 ML
25.2 ML
25.3 ML
25.4 ML
25.5 ML
67 N 0.0250% 0.05385% N NA NA Y FUNB
86 N 0.0250% 0.05385% Y 10.10000% 11/01/2004 Y FUNB
23 N 0.0250% 0.05385% N NA NA Y FUNB
7 N 0.0250% 0.05385% N NA NA Y FUNB
53 N 0.0250% 0.08885% N NA NA Y FUNB
94 N 0.0250% 0.05385% N NA NA Y FUNB
63 N 0.0250% 0.05385% N NA NA Y FUNB
8 N 0.0250% 0.05385% N NA NA Y ML
44 N 0.0250% 0.05385% N NA NA Y FUNB
121 N 0.0250% 0.05385% N NA NA Y FUNB
73 N 0.0250% 0.05385% N NA NA Y FUNB
34 N 0.0250% 0.05385% N NA NA Y ML
77 N 0.0250% 0.05385% N NA NA Y FUNB
123 N 0.0250% 0.05385% N NA NA N FUNB
124 N 0.0250% 0.05385% N NA NA Y FUNB
31 N 0.0250% 0.05385% N NA NA Y ML
106 N 0.0250% 0.05385% N NA NA Y FUNB
<CAPTION>
Is the
Mortgage
Loan
insured Cross
by a Collater- Is the Is the
Lease alized Mortgage Mortgage Is the
Enhance- and Is the Loan a Loan Mortgage
ment Cross Mortgage Semi- secured Loan an
Policy Defaulted Loan a Annual by a Interest
Control or RVI Loan Defeasance Mortgage letter of Reserve
Number Policy? Flag Loan? Loan? credit? Loan? Lockbox
- ------ ------- ---- ----- ----- ------- ----- -------
<C> <C> <C> <C> <C> <C> <C> <C>
111 N Y N N Y
84 N Y N N Y
140 N Y N N Y
75 N Y N N Y
75.1
75.2
75.3
120 N Y N N Y
144 N Trematore Y N N Y
66 N Y N N Y
119 N Y N N Y
145 N Trematore Y N N Y
134 N Y N N Y
115 N Y N N Y
137 N Y N N Y
122 N Lynd Y N N Y
136 N Timm Y N N Y
69 N Y N N Y
91 N Y N N Y
19 N Y N N Y
107 N Y N N Y
20 N Y N N Y
39 N Y N N Y
4 N Y N N Y Hard
29 N Y N N Y
127 N Y N N Y
88 N Y N N Y
118 N Y N N Y
36 N Y N N Y
81 N Y N N Y
95 N Y N N Y
95.1
95.2
95.3
25 N Y N N Y
25.1
25.2
25.3
25.4
25.5
67 N Y N N Y
86 N Y N N Y
23 N Y N N Y
7 N Y N Y Y Springing
53 N Y N N Y
94 N Y N N Y
63 N Y N N Y
8 N Y N N Y Hard
44 N Timm Y N N Y
121 N Y N N Y
73 N Y N N Y
34 N Y N N Y
77 N Y N N Y
123 N N N N N
124 N Y N N Y
31 N Y N N Y
106 N Y N N Y
<CAPTION>
Annual
Monthly Dep
Replacement Annual Annual Replace- Upfront Initial
Control Reserves Tax Insurance ment TI/LC at Repair
Number Escrow Escrow Escrow Reserve Closing Reserves
- ------ ------ ------ ------ ------- ------- --------
<S> <C> <C> <C> <C> <C> <C>
111 562.50 10,156.56 3,509.40 6,750.00 0.00 5,625.00
84 784.00 3,790.09 396.61 9,408.00 30,000.00 0.00
140 187.50 13,005.00 2,400.00 2,250.00 0.00 0.00
75 6998.00 12,941.65 1,745.17 83,976.00 0.00 85,350.00
75.1
75.2
75.3
120 92.36 15,019.56 5,715.96 1,108.32 0.00 0.00
144 97.40 10,686.84 2,733.00 1,168.80 0.00 1,250.00
66 822.00 13,492.00 859.00 9,864.00 140,000.00 0.00
119 490.83 31,950.00 4,486.08 5,889.96 0.00 0.00
145 96.15 10,506.96 3,651.96 1,153.80 0.00 12,500.00
134 939.25 33,750.00 8,584.68 11,271.00 0.00 10,218.75
115 655.00 27,066.96 4,112.16 7,860.00 0.00 3,000.00
137 360.64 14,368.44 2,061.00 4,327.68 0.00 0.00
122 1333.33 23,062.08 6,825.00 15,999.96 0.00 3,250.00
136 500.00 16,284.00 1,237.80 6,000.00 0.00 0.00
69 3125.00 41,595.24 15,765.12 37,500.00 0.00 18,875.00
91 1750.00 22,588.32 10,431.96 21,000.00 0.00 625.00
19 590.44 0.00 0.00 7,085.28 0.00 0.00
107 405.60 18,701.28 2,157.00 4,867.20 0.00 0.00
20 674.78 37,905.00 9,645.96 8,097.36 50,000.00 0.00
39 435.85 91,907.28 15,093.96 5,222.28 0.00 4,281.25
4 1747.00 7,103.00 2,767.59 20,964.00 888,172.00 0.00
29 1574.13 114,301.56 12,509.04 18,889.56 0.00 48,250.00
127 330.00 25,256.52 3,291.96 3,960.00 0.00 0.00
88 3000.00 45,662.40 12,390.00 36,000.00 0.00 19,325.00
118 937.50 9,065.64 3,438.00 11,250.00 0.00 0.00
36 4357.00 8,201.78 829.60 52,284.00 160,000.00 390,000.00
81 386.67 33,206.52 8,388.00 4,640.04 110,000.00 0.00
95 3479.00 1,490.00 0.00 41,748.00 0.00 0.00
95.1
95.2
95.3
25 11625.00 9,290.00 0.00 139,500.00 0.00 0.00
25.1
25.2
25.3
25.4
25.5
67 525.11 58,620.60 5,447.04 6,301.32 0.00 5,250.00
86 0.00 83,601.96 4,163.04 0.00 0.00 0.00
23 3645.83 124,562.04 45,613.92 43,749.96 0.00 1,250.00
7 5000.00 327,106.32 90,518.04 60,000.00 0.00 0.00
53 678.10 81,757.56 8,076.00 8,137.20 0.00 0.00
94 163.33 40,162.56 9,939.00 1,959.96 0.00 12,050.00
63 4385.79 24,267.96 12,014.64 51,777.84 0.00 2,000.00
8 1189.00 0.00 0.00 14,268.00 150,000.00 0.00
44 2000.00 50,175.96 5,404.20 24,000.00 0.00 0.00
121 875.00 30,160.44 8,647.68 10,500.00 0.00 3,125.00
73 2645.83 38,256.24 12,744.48 31,749.96 0.00 39,437.50
34 977.00 6,779.00 3,795.00 11,724.00 0.00 0.00
77 2901.33 50,448.36 21,920.04 34,815.96 0.00 21,937.50
123 1066.67 32,421.00 8,178.36 12,800.04 0.00 0.00
124 979.17 10,262.88 5,007.96 11,750.04 0.00 0.00
31 0.00 0.00 0.00 0.00 361,175.00 94,625.00
106 393.23 28,650.12 1,842.96 4,718.76 95,000.00 0.00
Initial
Environ- Future
Control mental TI/LC
Number Reserves Escrows?
- ------ -------- --------
111 0.00 NA
84 0.00 Y - See Footnote 1
140 0.00 NA
75 51,875.00 NA
75.1 NA
75.2 NA
75.3 NA
120 0.00 NA
144 0.00 NA
66 0.00 Y - See Footnote 1
119 0.00 NA
145 0.00 NA
134 30,000.00 NA
115 0.00 NA
137 0.00 NA
122 0.00 NA
136 0.00 NA
69 0.00 NA
91 0.00 NA
19 0.00 NA
107 0.00 NA
20 0.00 Y - See Footnote 1
39 0.00 NA
4 0.00 NA
29 0.00 NA
127 0.00 NA
88 0.00 NA
118 0.00 NA
36 0.00 NA
81 0.00 NA
95 0.00 NA
95.1 NA
95.2 NA
95.3 NA
25 0.00 NA
25.1 NA
25.2 NA
25.3 NA
25.4 NA
25.5 NA
67 0.00 NA
86 0.00 NA
23 0.00 NA
7 0.00 NA
53 0.00 NA
94 0.00 NA
63 0.00 NA
8 0.00 Y - See Footnote 1
44 0.00 NA
121 0.00 NA
73 0.00 NA
34 0.00 NA
77 0.00 NA
123 0.00 NA
124 0.00 NA
31 0.00 NA
106 0.00 NA
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Control Name Zip
Number Property Address City State Code
- ------ -------- ------- ---- ----- ----
<S> <C> <C> <C> <C> <C>
42 Esprit Luxury Villas 9830 Reagan Rd. San Diego CA 92126
99 Fallbrook Towne Centre 1075-1079 S. Mission Road Fallbrook CA 92028
14 Fountain Valley Center 16027-16205 Brookhurst Street Fountain Valley CA 92708
40 Gateway East Medical Office Buildings 7852,7878 and 7888 Gateway East Boulevard El Paso TX 79915
27 Giant Fredericksburg Leavells Road and Route 208 Fredericksburg VA 22407
139 Grace & First Street Apartments 13-15-17 East Grace Street Richmond VA 23219
68 Grandview Apartments Phase II 1319 East 45th Street Kearney NE 68847
18 Hampton Inn - King of Prussia 530 West Dekalb Pike King of Prussia PA 19406
17 Hampton Inn - Meadowlands 250 Harmon Meadow Blvd. Secaucus NJ 07094
26 Hampton Inn - Newark Airport 1128-1138 Spring Street Elizabeth NJ 07207
56 Hampton Inn - San Antonio 11010 Huebnor Road West San Antonio TX 78230
138 Harvest Plaza 3564 Wesley Chapel Road Decatur GA 30034
100 Hawthorne Square Shopping Center 3407 Montrose Blvd. Houston TX 77006
2 Hawthorne Works Shopping Center 4629 West Cermak Cicero IL 60804
109 Heilig Meyers- Charlotte 6300 South Blvd Charlotte NC 28217
135 Heilig Meyers- Las Cruses 1405 South Solano Las Cruces NM 88001
117 Heilig Meyers- National City 300 & 340 National City Blvd. National City CA 91950
116 Heilig Meyers- San Diego 2930 El Cajon Blvd San Diego CA 92104
112 Horizon Center 8035 Snouffer School Road Gaithersburg MD 20879
24 Intermedia-Digex Building 2950 Zanker Road San Jose CA 95134
79 Kennesaw Commons Apartments 419 Idlewood Road Kennesaw GA 30144
113 Lake Sahara Office Building IV 8685 West Sahara Avenue Las Vegas NV 89117
61 Lakes Mechandise Mart 3849-3999 NW 19th Street Lauderdale Lakes FL 33311
37 LEX- Hampton Technology Center I and II 400 Butler Farm Road Hampton VA 23666
49 LEX- Hampton Technology Center III 421 Butler Farm Road Hampton VA 23666
55 Lexington Village Senior Apartments 5000 South 107th Street Greenfield WI 53228
92 Linden Tower Apartments 116-118 E. Franklin Street Richmond VA 23219
76 Lossee Road Industrial Park 2710 Losee Road North Las Vegas NV 89030
78 Lower Pyne Building 92-98 Nassau Street Princeton NJ 07042
128 Main Street Commons 190-194 Main Street Westport CT 06880
132 Manor Ridge Apartments 210 South Main Street Wingate NC 28174
22 MAR Center 141-331 N. Atlantic Boulevard Monterey Park CA 90808
87 Mariner's Village Apartments 2130 Mayport Road Atlantic Beach FL 32233
9 Marlow Heights & Marlow Plaza 4000-4223 28th Ave & 2900 St. Clair Dr. Temple Hills MD 20748
21 Marriott Courtyard - Tampa 102 East Cass Street Tampa FL 33602
32 Miami Garden Villas 12 NE 188th st. Miami FL 33179
80 Motel 6 1105 Pensacola 7226 Plantation Road Pensacola FL 32504
59 Motel 6 270 Pismo Beach 860 4th Street Pismo Beach CA 93449
43 Motel 6 28 St. Barb Goleta 5897 Calle Real Goleta CA 93117
57 Motel 6 414 Gainesville 4000 SW 40th Blvd. Gainesville FL 32608
74 Motel 6 525 Cleveland Macedonia 311 E. Highland Road Macedonia OH 44056
47 Motel 6 69 Cocoa Beach 3701 No. Atlantic Ave. Cocoa Beach FL 32031
60 Mountain View Apartments 5324 Preakness Lane Dallas TX 75211
103 North Forty Estates 1601 North Forty Loop Shreveport LA 71107
93 North Point Apartments 1520 North Point Drive Reston VA 20194
28 Northgate Shopping Center 2800 North Water Street Decatur IL 62526
12 Nottingham Apartments 333 Dominion Drive Katy TX 77450
90 Office Depot 2997 Watson Boulevard Warner Robins GA 31093
105 One South Place Apartments 1311 Berttie-Rand Street Knoxville TN 37920
41 Orangeburg Office 560 Route 303 Orangeburg NY 10962
6 Pacific Islands Apartments 2151 N. Green Valley Parkway Henderson NV 89014
71 Park Plaza Shopping Center 7400-7700 49th Street North Pinellas Park FL 33781
133 Pebble Beach Apartments 402-414 East Aviation Boulevard Universal City TX 78148
142 Pets Plus SC Rt 309 Quakertown PA 18951
82 Petsmart- E. Madison 2216 East Springs Drive East Madison WI 53704
35 Plantation Crossing 12220 - 12250 Sunrise Boulevard Plantation FL 33323
48 Plaza del Sol Apartments 46289 - 46299 Arabia Street Indio CA 92201
<CAPTION>
Monthly
P&I For All
Payments Monthly Balloon
Following P&I Mortgage
Cut-Off Expiration Payment Original Remaining Loans, the
Date of Any Scheduled Term to Term to Maturity Remaining Orig. Remain.
Control Loan Applicable for Mortgage Maturity Maturity Date or Amort. Amort. Amort.
Number Balance IO Periods 6/1/00 Rate or ARD or ARD ARD Term Term Term
- ------ ------- ---------- ------ ---- ------ ------ --- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
42 5,887,149 45,617 45,617 8.5600% 120 116 01/01/2010 356 360 356
99 2,033,004 16,943 16,943 9.2500% 120 118 03/01/2010 358 360 358
14 13,092,210 101,564 101,564 8.5900% 120 119 04/01/2010 359 360 359
40 6,083,736 46,429 46,429 8.3900% 120 115 12/01/2009 355 360 355
27 9,767,555 Steps 73,151.88 8.4734% 300 298 03/01/2025 300 298
139 783,685 6,281 6,281 8.9375% 120 117 02/01/2010 357 360 357
68 3,350,468 25,007 25,007 8.1500% 120 115 12/01/2009 355 360 355
18 11,724,675 88,424 88,424 8.2500% 120 113 10/01/2009 353 360 353
17 11,809,347 89,063 89,063 8.2500% 120 113 10/01/2009 353 360 353
26 9,918,656 74,804 74,804 8.2500% 120 113 10/01/2009 353 360 353
56 4,014,481 30,276 30,276 8.2500% 120 113 10/01/2009 353 360 353
138 788,549 6,499 6,499 9.2500% 120 116 01/01/2010 356 360 356
100 2,029,541 16,154 16,154 8.8600% 120 117 02/01/2010 357 360 357
2 24,802,000 185,632 169,687 8.2100% 120 116 01/01/2010 360 360 360
109 1,607,148 12,275 12,275 7.4200% 156 135 08/01/2011 301 322 301
135 856,024 6,538 6,538 7.4200% 156 135 08/01/2011 301 322 301
117 1,365,680 10,431 10,431 7.4200% 156 135 08/01/2011 301 322 301
116 1,434,954 10,960 10,960 7.4200% 156 135 08/01/2011 301 322 301
112 1,549,564 12,768 12,768 9.2500% 120 117 02/01/2010 357 360 357
24 10,490,791 83,543 83,543 8.8750% 120 118 03/01/2010 358 360 358
79 2,548,480 19,752 19,752 8.5800% 120 119 04/01/2010 359 360 359
113 1,508,629 12,431 12,431 9.2500% 120 117 02/01/2010 357 360 357
61 3,662,748 29,873 29,873 8.6100% 120 116 01/01/2010 296 300 296
37 7,495,237 56,450 56,450 8.2700% 120 119 04/01/2010 359 360 359
49 4,597,073 34,591 34,591 8.2600% 120 119 04/01/2010 359 360 359
55 4,178,520 30,089 30,089 7.7500% 360 352 09/01/2029 360 352
92 2,295,945 17,992 17,992 8.6875% 120 117 02/01/2010 357 360 357
76 2,705,289 21,463 21,463 8.6900% 120 116 01/01/2010 356 360 356
78 2,574,312 19,856 19,856 8.5100% 120 116 01/01/2010 356 360 356
128 997,790 7,689 7,689 8.5000% 120 116 01/01/2010 356 360 356
132 939,405 6,689 6,689 7.6250% 360 352 09/01/2029 360 352
22 10,672,213 77,100 77,100 7.8100% 120 116 01/01/2010 356 360 356
87 2,360,865 17,437 17,437 7.8800% 120 110 07/01/2009 350 360 350
9 16,069,055 108,631 108,631 6.9770% 99 97 06/01/2008 339 341 339
21 10,760,874 87,569 87,569 8.5830% 120 116 01/01/2010 296 300 296
32 8,774,844 65,309 65,309 8.1200% 120 115 12/01/2009 355 360 355
80 2,533,516 Steps 125,378.03 7.2350% 216 193 06/01/2016 247 270 247
59 3,750,686 Steps 185,613.03 7.2350% 216 193 06/01/2016 247 270 247
43 5,580,948 Steps 276,188.62 7.2350% 216 193 06/01/2016 247 270 247
57 3,921,991 Steps 194,090.55 7.2350% 216 193 06/01/2016 247 270 247
74 2,803,998 Steps 138,763.59 7.2350% 216 193 06/01/2016 247 270 247
47 5,130,145 Steps 253,879.37 7.2350% 216 193 06/01/2016 247 270 247
60 3,711,858 28,709 28,709 8.5400% 120 116 01/01/2010 356 360 356
103 1,856,248 14,799 14,799 8.8750% 120 116 01/01/2010 356 360 356
93 2,279,268 15,447 15,447 7.1250% 360 352 09/01/2029 360 352
28 9,246,344 72,802 72,802 8.7400% 120 117 02/01/2010 357 360 357
12 14,750,000 111,019 101,652 8.2700% 120 116 01/01/2010 360 360 360
90 2,309,961 18,462 18,462 8.3900% 153 151 12/01/2012 298 300 298
105 1,721,507 12,082 12,082 7.5000% 240 235 12/01/2019 355 360 355
41 5,939,865 45,643 45,643 8.3300% 120 114 11/01/2009 354 360 354
6 20,800,000 152,333 138,320 7.9800% 180 176 01/01/2015 360 360 360
71 3,094,582 24,343 24,343 8.7300% 120 117 02/01/2010 357 360 357
133 924,127 7,548 7,548 8.6600% 117 116 01/01/2010 299 300 299
142 627,451 5,324 5,324 9.1250% 120 119 04/01/2010 299 300 299
82 2,482,818 20,018 20,018 8.5800% 120 97 06/01/2008 337 360 337
35 7,658,669 58,533 58,533 8.4100% 120 116 01/01/2010 356 360 356
48 4,780,763 36,001 36,001 8.2500% 120 116 01/01/2010 356 360 356
<CAPTION>
Is the
Mortgage Interest
Loan Total Rate Effective Is the
Secured Master Administ- During Date of Mortgage Credit
by a Servicing rative Hyper- Hyper Loan an Lease
Control Ground Fee Fee ARD Amort Amort Actual/360 Loan Loan CTL
Number Lease? Rate Rate Loans Period? Provisions Loan? Seller Flag Guarantor
- ------ ------ ---- ---- ----- ------- ---------- ----- ------ ---- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
42 Y 0.0250% 0.05385% N NA NA Y FUNB
99 N 0.0250% 0.05385% N NA NA Y ML
14 N 0.0250% 0.06885% N NA NA Y FUNB
40 N 0.0250% 0.05385% N NA NA Y FUNB
27 N 0.0250% 0.05385% N NA NA N FUNB CTL Giant Food, Inc.
139 N 0.0250% 0.05385% N NA NA Y FUNB
68 N 0.0250% 0.05385% N NA NA Y FUNB
18 N 0.0250% 0.05385% N NA NA Y FUNB
17 Y 0.0250% 0.05385% N NA NA Y FUNB
26 N 0.0250% 0.05385% N NA NA Y FUNB
56 N 0.0250% 0.05385% N NA NA Y FUNB
138 N 0.0250% 0.05385% N NA NA Y FUNB
100 N 0.0250% 0.05385% N NA NA Y FUNB
2 N 0.0250% 0.05385% N NA NA Y FUNB
109 N 0.0250% 0.05385% N NA NA N ML
135 N 0.0250% 0.05385% N NA NA N ML
117 N 0.0250% 0.05385% N NA NA N ML
116 N 0.0250% 0.05385% N NA NA N ML
112 N 0.0250% 0.05385% N NA NA Y FUNB
24 N 0.0250% 0.05385% N NA NA Y ML
79 N 0.0250% 0.05385% N NA NA Y FUNB
113 N 0.0250% 0.05385% N NA NA Y FUNB
61 N 0.0250% 0.05385% N NA NA Y FUNB
37 N 0.0250% 0.05385% N NA NA Y ML
49 N 0.0250% 0.05385% N NA NA Y ML
55 N 0.0250% 0.05385% N NA NA Y FUNB
92 N 0.0250% 0.05385% N NA NA Y FUNB
76 N 0.0250% 0.05385% N NA NA Y ML
78 N 0.0250% 0.05385% N NA NA Y FUNB
128 N 0.0250% 0.05385% N NA NA Y FUNB
132 N 0.0250% 0.05385% N NA NA N FUNB
22 N 0.0250% 0.05385% N NA NA Y FUNB
87 N 0.0250% 0.05385% N NA NA Y ML
9 N 0.0250% 0.05385% Y 8.97700% 06/01/2008 Y ML
21 Y 0.0250% 0.05385% N NA NA Y FUNB
32 N 0.0250% 0.05385% N NA NA Y FUNB
80 N 0.0250% 0.20500% N NA NA N FUNB CTL Accor SA
59 N 0.0250% 0.20500% N NA NA N FUNB CTL Accor SA
43 N 0.0250% 0.20500% N NA NA N FUNB CTL Accor SA
57 N 0.0250% 0.20500% N NA NA N FUNB CTL Accor SA
74 N 0.0250% 0.20500% N NA NA N FUNB CTL Accor SA
47 N 0.0250% 0.20500% N NA NA N FUNB CTL Accor SA
60 N 0.0250% 0.05385% N NA NA Y FUNB
103 N 0.0250% 0.05385% N NA NA Y FUNB
93 N 0.0250% 0.05385% N NA NA Y FUNB
28 N 0.0250% 0.05385% N NA NA Y FUNB
12 N 0.0250% 0.05385% N NA NA Y FUNB
90 N 0.0250% 0.05385% N NA NA Y FUNB
105 N 0.0250% 0.05385% N NA NA N FUNB
41 N 0.0250% 0.05385% N NA NA Y ML
6 N 0.0250% 0.05385% N NA NA Y FUNB
71 N 0.0250% 0.05385% N NA NA Y FUNB
133 N 0.0250% 0.05385% N NA NA Y FUNB
142 N 0.0250% 0.05385% N NA NA Y FUNB
82 N 0.0250% 0.05385% N NA NA N ML
35 N 0.0250% 0.05385% N NA NA Y FUNB
48 N 0.0250% 0.05385% N NA NA Y FUNB
<CAPTION>
Is the
Mortgage
Loan
insured Cross
by a Collater- Is the Is the
Lease alized Mortgage Mortgage Is the
Enhance- and Is the Loan a Loan Mortgage
ment Cross Mortgage Semi- secured Loan an
Policy Defaulted Loan a Annual by a Interest
Control or RVI Loan Defeasance Mortgage letter of Reserve
Number Policy? Flag Loan? Loan? credit? Loan? Lockbox
- ------ ------- ---- ----- ----- ------- ----- -------
<C> <C> <C> <C> <C> <C> <C> <C>
42 N Y N N Y
99 N Y N N Y
14 N Y N N Y
40 N Y N N Y
27 Y Y N N N Hard
139 N Y N N Y
68 N Timm Y N N Y
18 N Y N N Y Springing
17 N Y N N Y Springing
26 N Y N N Y Springing
56 N Y N N Y Springing
138 N Y N N Y
100 N Y N N Y
2 N Y N N Y
109 N Y N N N Hard
135 N Y N N N Hard
117 N Y N N N Hard
116 N Y N N N Hard
112 N Y N N Y
24 N Y N N Y Hard
79 N Y N N Y
113 N Y N N Y
61 N Y N N Y
37 N Y N N Y Hard
49 N Y N N Y Hard
55 N N N N Y
92 N Y N N Y
76 N Y N N Y
78 N Y N N Y
128 N Y N N Y
132 N N N N N
22 N Y N N Y
87 N Y N N Y
9 N Y N N Y Hard
21 N Y N N Y
32 N Y N N Y
80 N N Y N N Hard
59 N N Y N N Hard
43 N N Y N N Hard
57 N N Y N N Hard
74 N N Y N N Hard
47 N N Y N N Hard
60 N Y N N Y
103 N Y N N Y
93 N N N N Y
28 N Y N N Y
12 N Y N N Y
90 N Y N N Y
105 N N N N N
41 N Y N N Y
6 N Y N N Y
71 N Y N N Y
133 N Lynd Y N N Y
142 N Y N N Y
82 N Y N N N Hard
35 N Y N N Y
48 N Y N N Y
<CAPTION>
Annual
Monthly Dep
Replacement Annual Annual Replace- Upfront Initial
Control Reserves Tax Insurance ment TI/LC at Repair
Number Escrow Escrow Escrow Reserve Closing Reserves
- ------ ------ ------ ------ ------- ------- --------
<S> <C> <C> <C> <C> <C> <C>
42 2250.00 81,638.28 9,500.04 27,000.00 0.00 56,500.00
99 270.00 0.00 0.00 3,240.00 35,000.00 0.00
14 2190.67 143,489.52 34,230.96 26,288.04 0.00 6,750.00
40 577.86 100,155.36 24,301.08 6,934.32 0.00 12,300.00
27 0.00 0.00 0.00 0.00 0.00 0.00
139 395.83 11,512.08 1,104.96 4,749.96 0.00 5,687.50
68 2000.00 71,497.56 5,319.24 24,000.00 0.00 0.00
18 12606.12 107,943.96 0.00 151,273.44 0.00 250.00
17 14170.83 174,627.00 0.00 168,880.92 0.00 11,812.50
26 12977.52 177,540.00 0.00 160,596.96 0.00 2,906.25
56 6677.32 103,148.52 9,888.96 80,244.00 0.00 0.00
138 180.50 7,953.60 2,676.00 2,166.00 0.00 0.00
100 119.35 44,722.08 6,369.00 1,432.20 50,000.00 0.00
2 3100.69 227,138.40 45,825.96 37,208.28 0.00 84,268.75
109 0.00 0.00 0.00 0.00 0.00 0.00
135 0.00 0.00 0.00 0.00 0.00 0.00
117 0.00 0.00 0.00 0.00 0.00 0.00
116 0.00 0.00 0.00 0.00 0.00 0.00
112 377.12 26,940.84 3,990.00 4,525.44 0.00 0.00
24 1378.00 8,640.51 1,812.80 16,536.00 500,000.00 0.00
79 1000.00 30,347.16 15,500.04 12,000.00 0.00 14,125.00
113 150.71 13,083.48 2,300.04 1,808.52 0.00 0.00
61 1728.39 60,437.28 23,072.40 20,740.68 0.00 1,500.00
37 839.00 4,694.00 1,285.00 10,068.00 0.00 0.00
49 461.00 1,069.00 720.00 5,532.00 0.00 0.00
55 $1750 - 1st 5 yrs, $2250 next 5 yrs, $2750 til MD 10,259.04 12,194.04 21,000.00 0.00 0.00
92 875.00 26,864.04 4,599.96 10,500.00 0.00 4,862.50
76 860.00 2,720.17 297.84 10,320.00 0.00 0.00
78 315.13 76,208.28 5,043.00 3,781.56 0.00 13,000.00
128 127.01 23,673.48 3,417.00 1,524.12 0.00 0.00
132 534 - first 5 years, 667 - next 6 years, $800 til MD 14,019.36 2,468.40 6,408.00 0.00 0.00
22 855.21 129,279.12 27,963.96 10,262.52 0.00 10,000.00
87 2500.00 3,175.00 1,500.00 30,000.00 0.00 50,000.00
9 7150.00 18,017.58 3,443.66 85,800.00 0.00 32,393.62
21 13217.30 152,798.88 28,109.16 160,245.00 0.00 0.00
32 7833.33 232,056.96 63,121.80 93,999.96 0.00 25,375.00
80 0.00 0.00 0.00 0.00 0.00 0.00
59 0.00 0.00 0.00 0.00 0.00 0.00
43 0.00 0.00 0.00 0.00 0.00 0.00
57 0.00 0.00 0.00 0.00 0.00 0.00
74 0.00 0.00 0.00 0.00 0.00 0.00
47 0.00 0.00 0.00 0.00 0.00 0.00
60 4333.33 51,514.68 21,611.88 51,999.96 0.00 69,875.00
103 1375.00 29,858.88 7,585.92 16,500.00 0.00 21,100.00
93 800 - first 5 years, 1000 - next 6 years, $1200 til MD 41,441.04 4,134.00 9,600.00 0.00 0.00
28 1715.66 72,099.60 15,140.04 20,587.92 125,000.00 0.00
12 4433.33 352,659.12 18,714.00 53,199.96 0.00 0.00
90 0.00 0.00 0.00 0.00 0.00 0.00
105 $1,200 - 1st 5 yrs, $1,500 next 6 yrs, $1,800 til MD 42,407.16 10,805.04 14,400.00 0.00 0.00
41 1870.00 3,942.48 1,151.00 22,440.00 516,000.00 20,000.00
6 7245.33 196,250.28 29,510.04 86,943.96 0.00 0.00
71 2085.50 149,975.04 18,692.40 25,026.00 $200,000 (LOC) 9,375.00
133 1270.83 18,278.88 7,580.04 15,249.96 0.00 5,125.00
142 262.50 25,651.56 2,196.00 3,150.00 0.00 9,375.00
82 0.00 0.00 0.00 0.00 0.00 0.00
35 587.35 143,492.04 37,147.20 7,048.20 0.00 0.00
48 3571.25 94,135.80 14,216.04 42,855.00 0.00 0.00
Initial
Environ- Future
Control mental TI/LC
Number Reserves Escrows?
- ------ -------- --------
42 0.00 NA
99 0.00 NA
14 0.00 NA
40 0.00 NA
27 0.00 NA
139 0.00 NA
68 0.00 NA
18 0.00 NA
17 0.00 NA
26 625,000.00 NA
56 0.00 NA
138 0.00 NA
100 625.00 Y - See Footnote 1
2 0.00 NA
109 0.00 NA
135 0.00 NA
117 0.00 NA
116 0.00 NA
112 0.00 NA
24 0.00 NA
79 0.00 NA
113 0.00 Y - See Footnote 1
61 0.00 NA
37 0.00 Y - See Footnote 1
49 0.00 Y - See Footnote 1
55 0.00 NA
92 0.00 NA
76 0.00 NA
78 0.00 NA
128 0.00 NA
132 0.00 NA
22 0.00 NA
87 0.00 NA
9 0.00 NA
21 0.00 NA
32 0.00 NA
80 0.00 NA
59 0.00 NA
43 0.00 NA
57 0.00 NA
74 0.00 NA
47 0.00 NA
60 0.00 NA
103 0.00 NA
93 0.00 NA
28 0.00 NA
12 0.00 NA
90 0.00 NA
105 0.00 NA
41 0.00 NA
6 0.00 NA
71 0.00 NA
133 0.00 NA
142 0.00 NA
82 0.00 NA
35 0.00 Y - See Footnote 1
48 0.00 NA
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Control Name Zip
Number Property Address City State Code
- ------ -------- ------- ---- ----- ----
<S> <C> <C> <C> <C> <C>
98 Prince William Plaza 14310 and 14440 Jefferson Davis Highway Woodbridge VA 22191
96 Ramona Industrial Center 740 Driving Park Avenue Rochester NY 14215
51 Residence Inn - Greenville 120 Milestone Way Greenville SC 29615
33 Riverpark II 1200 River Road Miquon PA 19452
83 Riverstone Apartments 1870 South Atlanta Road Smyrna GA 30080
102 Sable Point Apartments Phase II Sable Point Drive Hurricane WV 25526
125 San Pedro Mobile Home Park 87401 State Road 905 Islamorada FL 33036
5 San Tropez Apartments 8025 West Russell Road Las Vegas NV 89113
15 School Street Shopping Center 265 Ellington Road East Hartford CT 06108
46 Shaw's Plaza 620 Middle Street Weymouth MA 02189
54 Shillington Shopping Center 500 East Lancaster Avenue Shillington PA 19607
52 Shoppes II at Riverdale Commons 12465 -12485 Poppy Street Coon Rapids MN 55433
62 Skipper Palms Shopping Center 2526-2560 Bearss Avenue Tampa FL 33618
101 Stadium Village Shopping Center 917-935 Washington Avenue S.E. Minneapolis MN 55414
13 Sterling University Arbors 1255 South College Street Auburn AL 36830
131 Studer Arms Apartments 1600 Center St. Jupiter FL 33458
114 Suffolk West Shopping Center 817 West Constance Road Suffolk VA 23434
10 The Atrium at Gainesville 2434 NW 41st Street Gainesville FL 32606
97 The Lighthouse Inn 3208 NE 11st Street Pompano Beach FL 33062
58 The Village at Johnson Creek Apartments 400 S. Collins Street Arlington TX 76010
3 Thomson Consumer Electronics 10330 North Meridian Street Indianapolis IN 46290
16 Tiger Plaza Apartments 4445 Alvin Dark Baton Rouge LA 70820
65 Town Square Shopping Center 2001 Naperville Road Wheaton IL 60187
143 Trinity Park MHP 1800 Meridian Ct. Conroe TX 77301
38 Turtle Creek 121 Hickory Trace Dr. Nashville TN 37211
85 U-Haul Center City 1201 Washington Avenue Philadelphia PA 19147
126 U-Haul Conroe Center 1305 South I-45 Conroe TX 77301
89 U-Haul CT Clark Avenue 6000 Clark Avenue Cleveland OH 44102
108 U-Haul Memorial 1010 South Memorial Drive Tulsa OK 74112
72 U-Haul University 6701 South Dixie Highway Miami FL 33146
110 University Commons 600-602 Sherman Street Akron OH 44311
45 University Court Apartments 2102 N. Walnut St. Ellensburg WA 98926
50 Vanderbilt Court Apartments 12630 Ashford Point Dr. Houston TX 77082
129 Victory Place Apartments 3144 Chateau Drive East Point GA 30344
141 Vista Plaza 3516-3544 East Southern Avenue Mesa AZ 85204
1 Washingtonian Center 15 Grand Corner Avenue Gaithersburg MD 20878
130 Wellington Place Shopping Center 200-240 Grapevine Hwy Hurst TX 76054
30 Westlink Village Apartments 505 North Tyler Street Wichita KS 67212
11 Wildwood Forest Apartments 455 Wildwood Forest Drive Spring TX 77380
104 Winston Plaza 31760 - 31762 Mission Trail Road Lake Elsinore CA 92530
<CAPTION>
Monthly
P&I For All
Payments Monthly Balloon
Following P&I Mortgage
Cut-Off Expiration Payment Original Remaining Loans, the
Date of Any Scheduled Term to Term to Maturity Remaining Orig. Remain.
Control Loan Applicable for Mortgage Maturity Maturity Date or Amort. Amort. Amort.
Number Balance IO Periods 6/1/00 Rate or ARD or ARD ARD Term Term Term
- ------ ------- ---------- ------ ---- ------ ------ --- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
98 2,096,769 17,623 17,623 9.0000% 120 118 03/01/2010 298 300 298
96 2,166,198 17,547 17,547 8.6250% 120 112 09/01/2009 304 312 304
51 4,490,252 34,866 34,866 8.5830% 120 116 01/01/2010 356 360 356
33 8,717,303 67,526 67,526 8.4300% 120 116 01/01/2010 356 360 356
83 2,473,266 18,754 18,754 8.3200% 120 115 12/01/2009 355 360 355
102 1,895,743 13,285 13,285 7.5000% 180 177 02/01/2015 357 360 357
125 1,134,703 9,042 9,042 8.8700% 120 116 01/01/2010 356 360 356
5 21,825,000 164,271 150,411 8.2700% 120 118 03/01/2010 360 360 360
15 12,857,068 100,317 100,317 8.6400% 120 117 02/01/2010 357 360 357
46 5,246,639 39,368 39,368 8.2300% 120 119 04/01/2010 359 360 359
54 4,285,722 32,683 32,683 8.3750% 120 114 11/01/2009 354 360 354
52 4,342,598 34,564 34,564 8.8600% 120 117 02/01/2010 357 360 357
62 3,646,555 28,389 28,389 8.6250% 120 118 03/01/2010 358 360 358
101 1,948,427 15,901 15,901 9.1500% 120 118 03/01/2010 358 360 358
13 13,120,000 97,921 89,435 8.1800% 120 119 04/01/2010 360 360 360
131 964,445 7,592 7,592 8.7500% 120 119 04/01/2010 359 360 359
114 1,497,718 12,504 12,504 9.4000% 120 117 02/01/2010 357 360 357
10 15,864,611 121,919 121,919 8.4700% 120 116 01/01/2010 356 360 356
97 2,098,055 16,431 16,431 8.6900% 120 118 03/01/2010 358 360 358
58 3,904,270 28,720 28,720 8.0000% 180 176 01/01/2015 356 360 356
3 24,605,207 190,005 190,005 8.5400% 144 143 04/01/2012 359 360 359
16 12,415,000 96,563 89,233 8.6250% 120 118 03/01/2010 360 360 360
65 3,491,549 25,987 25,987 8.1250% 120 116 01/01/2010 356 360 356
143 516,955 4,121 4,121 8.8750% 120 116 01/01/2010 356 360 356
38 7,286,842 56,545 56,545 8.5800% 120 117 02/01/2010 357 360 357
85 2,427,767 20,094 20,094 8.8200% 120 119 04/01/2010 299 300 299
126 1,057,028 8,749 8,749 8.8200% 120 119 04/01/2010 299 300 299
89 2,343,844 19,399 19,399 8.8200% 120 119 04/01/2010 299 300 299
108 1,613,516 13,355 13,355 8.8200% 120 119 04/01/2010 299 300 299
72 3,061,184 25,336 25,336 8.8200% 120 119 04/01/2010 299 300 299
110 1,598,595 12,725 12,725 8.8700% 120 118 03/01/2010 358 360 358
45 5,308,713 40,634 40,634 8.4400% 120 118 03/01/2010 358 360 358
50 4,587,216 34,494 34,494 8.2300% 120 115 12/01/2009 355 360 355
129 986,851 7,654 7,654 8.5700% 120 116 01/01/2010 356 360 356
141 723,122 5,575 5,575 8.5000% 120 115 12/01/2009 355 360 355
1 39,387,474 273,490 273,490 7.4000% 120 116 01/01/2010 356 360 356
130 981,579 8,445 8,445 9.2900% 120 118 03/01/2010 298 300 298
30 9,120,000 66,475 60,268 7.9300% 120 115 12/01/2009 360 360 360
11 15,654,661 116,078 116,078 8.0800% 120 115 12/01/2009 355 360 355
104 1,759,235 14,496 14,496 9.2500% 120 117 02/01/2010 357 360 357
<CAPTION>
Is the
Mortgage Interest
Loan Total Rate Effective Is the
Secured Master Administ- During Date of Mortgage Credit
by a Servicing rative Hyper- Hyper Loan an Lease
Control Ground Fee Fee ARD Amort Amort Actual/360 Loan Loan CTL
Number Lease? Rate Rate Loans Period? Provisions Loan? Seller Flag Guarantor
- ------ ------ ---- ---- ----- ------- ---------- ----- ------ ---- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
98 N 0.0250% 0.05385% N NA NA Y FUNB
96 N 0.0250% 0.05385% N NA NA Y FUNB
51 Y 0.0250% 0.05385% N NA NA Y FUNB
33 N 0.0250% 0.05385% N NA NA Y ML
83 N 0.0250% 0.05385% N NA NA Y FUNB
102 N 0.0250% 0.05385% N NA NA N FUNB
125 N 0.0250% 0.05385% N NA NA Y FUNB
5 N 0.0250% 0.05385% N NA NA Y FUNB
15 N 0.0250% 0.05385% N NA NA Y FUNB
46 N 0.0250% 0.05385% N NA NA Y FUNB
54 N 0.0250% 0.05385% N NA NA Y FUNB
52 N 0.0250% 0.05385% N NA NA Y FUNB
62 N 0.0250% 0.05385% N NA NA Y FUNB
101 N 0.0250% 0.05385% N NA NA Y FUNB
13 N 0.0250% 0.05385% N NA NA Y FUNB
131 N 0.0250% 0.05385% N NA NA Y FUNB
114 Y 0.0250% 0.05385% N NA NA Y FUNB
10 N 0.0250% 0.05385% N NA NA Y FUNB
97 N 0.0250% 0.05385% N NA NA Y FUNB
58 N 0.0250% 0.05385% N NA NA Y FUNB
3 N 0.0250% 0.05385% Y 10.54000% 04/01/2012 Y ML
16 N 0.0250% 0.06885% N NA NA Y FUNB
65 Y 0.0250% 0.05385% N NA NA Y FUNB
143 N 0.0250% 0.05385% N NA NA Y FUNB
38 N 0.0250% 0.05385% N NA NA Y FUNB
85 Y (See Footnote 2) 0.0250% 0.05385% N NA NA Y FUNB
126 Y (See Footnote 2) 0.0250% 0.05385% N NA NA Y FUNB
89 Y (See Footnote 2) 0.0250% 0.05385% N NA NA Y FUNB
108 Y (See Footnote 2) 0.0250% 0.05385% N NA NA Y FUNB
72 Y (See Footnote 2) 0.0250% 0.05385% N NA NA Y FUNB
110 N 0.0250% 0.05385% N NA NA Y FUNB
45 N 0.0250% 0.05385% N NA NA Y FUNB
50 N 0.0250% 0.05385% N NA NA Y FUNB
129 N 0.0250% 0.05385% N NA NA Y FUNB
141 N 0.0250% 0.05385% N NA NA Y FUNB
1 N 0.0250% 0.05385% N NA NA Y FUNB
130 N 0.0250% 0.05385% N NA NA Y FUNB
30 N 0.0250% 0.05385% N NA NA Y FUNB
11 N 0.0250% 0.05385% N NA NA Y FUNB
104 N 0.0250% 0.05385% N NA NA Y FUNB
<CAPTION>
Is the
Mortgage
Loan
insured Cross
by a Collater- Is the Is the
Lease alized Mortgage Mortgage Is the
Enhance- and Is the Loan a Loan Mortgage
ment Cross Mortgage Semi- secured Loan an
Policy Defaulted Loan a Annual by a Interest
Control or RVI Loan Defeasance Mortgage letter of Reserve
Number Policy? Flag Loan? Loan? credit? Loan? Lockbox
- ------ ------- ---- ----- ----- ------- ----- -------
<S> <C> <C> <C> <C> <C> <C> <C>
98 N Y N N Y
96 N Y N N Y
51 N Y N N Y
33 N Y N N Y Hard
83 N Y N N Y
102 N N N N N
125 N Y N N Y
5 N Y N N Y
15 N Y N N Y
46 N Y N N Y
54 N Y N N Y
52 N Y N N Y
62 N Y N N Y
101 N Y N N Y
13 N Y N N Y
131 N Y N N Y
114 N Y N N Y
10 N Y N N Y
97 N Y N N Y
58 N N N N Y
3 N Y N N Y Hard
16 N Y N N Y
65 N Y N N Y
143 N Y N N Y
38 N Y N N Y
85 N U-Haul Pool III Y N N Y
126 N U-Haul Pool III Y N N Y
89 N U-Haul Pool III Y N N Y
108 N U-Haul Pool III Y N N Y
72 N U-Haul Pool III Y N N Y
110 N Y N N Y
45 N Y N N Y
50 N N N N Y
129 N Y N N Y
141 N Y N N Y
1 N Y N N Y
130 N Y N N Y
30 N Y N N Y
11 N Y N N Y
104 N Y N N Y
<CAPTION>
Annual
Monthly Dep
Replacement Annual Annual Replace- Upfront Initial
Control Reserves Tax Insurance ment TI/LC at Repair
Number Escrow Escrow Escrow Reserve Closing Reserves
- ------ ------ ------ ------ ------- ------- --------
<S> <C> <C> <C> <C> <S> <C>
98 1137.15 41,459.40 5,222.04 13,645.80 0.00 106,968.75
96 1322.14 102,276.12 4,413.00 15,865.68 0.00 45,725.00
51 6044.14 47,328.00 11,301.24 74,819.40 0.00 0.00
33 1299.00 0.00 0.00 0.00 0.00 938,500.00
83 1452.00 19,318.20 8,712.00 17,424.00 0.00 17,018.75
102 625.00 39,654.00 7,623.48 12,800.04 0.00 0.00
125 268.75 11,842.80 2,296.92 3,225.00 0.00 10,937.50
5 7000.00 210,464.64 30,000.00 84,000.00 0.00 0.00
15 1949.31 181,203.48 36,824.04 23,391.72 0.00 30,250.00
46 994.84 145,943.28 9,835.92 11,938.08 0.00 96,093.75
54 1131.45 92,396.04 12,867.00 13,577.40 0.00 186,948.75
52 351.44 33,871.08 7,013.04 4,217.28 0.00 0.00
62 1112.28 81,597.12 14,688.96 13,347.36 0.00 38,585.00
101 162.83 21,701.64 3,042.96 1,953.96 40,000.00 0.00
13 3750.00 107,391.96 0.00 45,000.00 0.00 5,875.00
131 625.00 13,375.08 7,623.48 7,500.00 0.00 0.00
114 594.48 29,414.52 2,361.00 7,133.76 0.00 3,750.00
10 5020.83 319,659.96 32,844.00 60,249.96 0.00 0.00
97 958.33 21,858.84 13,727.16 11,499.96 0.00 875.00
58 2333.33 85,104.00 18,206.04 27,999.96 0.00 0.00
3 0.00 0.00 0.00 0.00 0.00 0.00
16 6250.00 44,292.84 59,054.04 75,000.00 0.00 9,968.75
65 141.51 43,721.64 2,499.96 1,698.12 0.00 0.00
143 225.00 2,975.40 1,437.96 2,700.00 0.00 7,312.50
38 6906.67 164,757.96 40,902.00 82,880.04 0.00 9,812.50
85 757.79 0.00 3,848.04 8,938.92 0.00 12,000.00
126 499.00 0.00 2,714.04 5,988.00 0.00 3,800.00
89 845.44 0.00 3,843.00 10,145.28 0.00 8,575.00
108 609.33 0.00 6,915.96 7,311.96 0.00 0.00
72 626.99 0.00 6,911.04 7,395.96 0.00 5,750.00
110 750.00 33,078.84 4,947.96 9,000.00 0.00 0.00
45 2125.00 38,661.72 11,826.96 25,500.00 0.00 0.00
50 3075.00 92,209.20 22,978.92 36,900.00 0.00 38,725.00
129 1104.00 9,728.64 5,282.04 13,248.00 0.00 62,032.50
141 195.82 18,028.80 2,705.04 2,349.84 0.00 1,875.00
1 0.00 668,782.68 10,906.08 0.00 0.00 0.00
130 317.66 30,113.16 2,062.08 3,811.92 $43,200 (LOC) 12,912.50
30 4000.00 72,549.00 20,870.04 48,000.00 0.00 0.00
11 0.00 203,825.88 0.00 0.00 0.00 0.00
104 497.96 20,467.56 5,070.96 5,975.52 $100,000 (LOC) 937.50
Initial
Environ- Future
Control mental TI/LC
Number Reserves Escrows?
- ------ -------- --------
98 0.00 Y - See Footnote 1
96 0.00 Y - See Footnote 1
51 0.00 NA
33 24,744.00 NA
83 0.00 NA
102 0.00 NA
125 0.00 NA
5 0.00 NA
15 0.00 NA
46 0.00 NA
54 0.00 Y - See Footnote 1
52 0.00 NA
62 300,000.00 NA
101 0.00 NA
13 0.00 NA
131 0.00 NA
114 0.00 NA
10 0.00 NA
97 0.00 NA
58 0.00 NA
3 0.00 NA
16 0.00 NA
65 0.00 NA
143 0.00 NA
38 5,250.00 NA
85 0.00 NA
126 0.00 NA
89 0.00 NA
108 0.00 NA
72 0.00 NA
110 0.00 NA
45 0.00 NA
50 0.00 NA
129 0.00 NA
141 0.00 NA
1 0.00 NA
130 0.00 NA
30 0.00 NA
11 0.00 NA
104 0.00 NA
</TABLE>
(1) In addition to any such escrows funded at loan closing for potential TI/LC
expenses, these loans require funds to be escrowed during some or all of
the loan term for TI/LC expenses which may be incurred during the loan
term. In certain instances, escrowed funds may be released to borrower upon
satisfaction of certain leasing conditions.
(2) Fee interest subordinate to the leasehold interest (ie fee owner has joined
in the mortgage)
<PAGE>
EXHIBIT C-1
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
With respect to each Mortgage Loan, any and all intervening endorsements,
thereon, endorsed on its face or by allonge attached thereto as required by
clause (i) of the definition of Mortgage File.
<PAGE>
EXHIBIT C-2
FORM OF CUSTODIAL CERTIFICATION
[Date]
ORIX Real Estate Capital Markets, LLC
1717 Main Street, 14th Floor
Dallas, Texas 75201
Attention: [ ]
Merrill Lynch Mortgage Capital, Inc.
World Financial Center
North Tower, Floor [ ]
New York, New York 10281
First Union Commercial Mortgage Securities, Inc.
One First Union Center
Charlotte, North Carolina 28228
Attention: Barry Reiner
First Union National Bank
8739 Research Drive B URP4, NC 1075
Charlotte, North Carolina 28262-1075
Attention: First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2000-C1
Re: First Union National Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2000-C1
Ladies and Gentlemen:
Norwest Bank Minnesota, National Association, as Trustee, hereby certifies to
the above referenced parties that, with respect to each Mortgage Loan listed in
the Mortgage Loan Schedule, except as specifically identified in the schedule of
exceptions annexed hereto, (i) without regard to the proviso in the definition
of "Mortgage File," all documents specified in clauses (i), (ii), (iv)(a), (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 (iii),
(iv)(b), (iv)(c), (vi), (viii) and (ix) of the definition of "Mortgage File" are
in its possession, (ii) all documents delivered or caused to be delivered by the
applicable Mortgage
C-2-1
<PAGE>
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)(c) of the definition of
"Mortgage Loan Schedule" is correct.
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. Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them under the Pooling and Servicing Agreement.
Respectfully,
________________________________________
Name:___________________________________
Title:__________________________________
C-2-2
<PAGE>
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
Norwest Bank Minnesota, National Association
1015 10th Avenue S.E.
Minneapolis, Minnesota 55414
Attn: Corporate Trust Services (CMBS)-First Union National Bank, Series 2000-C1
Re: First Union National Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2000-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 May 1, 2000
(the "Pooling and Servicing Agreement"), by and among First Union Commercial
Mortgage Securities, Inc., as Depositor, First Union National Bank, as Master
Servicer, ORIX Real Estate Capital Markets, LLC 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.
Property Name:
Property Address:
Control No.:
The Mortgage File should be delivered to the following:
________________________________________
________________________________________
________________________________________
Attn:___________________________________
Phone:__________________________________
D-1-1
<PAGE>
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
_____ 1. Mortgage Loan paid in full.
The 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.
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-1-2
<PAGE>
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
Norwest Bank Minnesota, National Association
1015 10th Avenue S.E.
Minneapolis, Minnesota 55414
Attn: Corporate Trust Services (CMBS)-First Union National Bank, Series 2000-C1
Re: First Union National Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2000-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 May 1, 2000
(the "Pooling and Servicing Agreement"), by and among First Union Commercial
Mortgage Securities, Inc., as Depositor, First Union National Bank, as Master
Servicer, ORIX Real Estate Capital Markets, LLC, 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.
Property Name:
Property Address:
Control No.:
The Mortgage File should be delivered to the following:
________________________________________
________________________________________
________________________________________
Attn:___________________________________
Phone:__________________________________
D-2-1
<PAGE>
If only particular documents in the Mortgage File are requested, please
specify which:
D-2-2
<PAGE>
Reason for requesting file (or portion thereof):
_____ 1. The Mortgage Loan is being foreclosed.
_____ 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.
ORIX REAL ESTATE CAPITAL
MARKETS, LLC
as Special Servicer
By:_____________________________________
Name:________________________________
Title:_______________________________
D-2-3
<PAGE>
EXHIBIT E
CALCULATION OF NOI/DEBT SERVICE COVERAGE RATIOS
"Net Cash Flow" 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
replacement reserves and an allowance for vacancies and credit losses. 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 and an allowance for vacancies and credit
losses.
In determining the "revenue" component of Net Cash Flow 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 or single tenants or other large
creditworthy 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.
Where the actual or market vacancy was not less than 5.0%, the Special Servicer
shall determine revenue from rents by generally relying on the most recent roll
supplied and the greater of (a) actual historical vacancy at the related
Mortgaged Property, (b) historical vacancy at comparable properties in the same
market as the related Mortgaged Property, and (c) 5.0%. In determining rental
revenue for multifamily, self-storage and mobile home park properties, the
Special Servicer shall either review rental revenue shown on the certified
rolling 12-month operating statements or annualize the rental revenue and
reimbursement of expenses shown on rent rolls or operating statements with
respect to the prior one to twelve month periods. For the other Rental
Properties, the Special Servicer shall annualize rental revenue shown on the
most recent certified 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 occupancy not to exceed 80.0% and
daily rates achieved during the prior two to three year annual reporting period.
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. Occupancy rates for private health care facilities 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 Cash Flow for each
Mortgaged Property, the Special Servicer shall rely on the rolling 12-month
operating statements and/or full-year or year-to-date financial statements
supplied by the related borrower, except that (a) if tax or insurance expense
E-1
<PAGE>
information more current than that reflected in the financial statements is
available, the newer information shall be used, (b) with respect to each
Mortgaged Property, property management fees shall be assumed to be 3% to 7% of
effective gross revenue (except with respect to hospitality properties, where a
minimum of 3.5% of gross receipts shall be assumed, and with respect to limited
service hospitality properties, where a minimum of 4.0% of gross receipts shall
be assumed and, with respect to single tenant properties, where fees as low as
1.5% of effective gross receipts 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 $0.10
and not more than $0.15 per square foot net rentable commercial area, (2) in the
case of multifamily and three mixed use multifamily/retail properties, not less
than $250 per residential unit per year, depending on the condition of the
property, (3) in the case of hospitality properties, not less than 4% and not
more than 5% of the gross revenues received by the property owner on an ongoing
basis, (4) in the case of residential healthcare facilities, $200 to $350 per
bed per year and (5) in the case of the mobile home parks, not less than $50 or
more than $100 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 cash flow") where
determined appropriate.
E-2
<PAGE>
EXHIBIT F
[RESERVED]
F-1
<PAGE>
EXHIBIT G-1
FORM OF TRANSFEROR CERTIFICATE
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette-MAC#N9303-121
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services (CMBS) - First Union National Bank, Series
2000-C1
Re: First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series 2000-C1 (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 May 11, 2000 (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 May 1, 2000, among First Union
Commercial Mortgage Securities, Inc., as depositor, First Union National Bank,
as master servicer, ORIX Real Estate Capital Markets, LLC, 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 solicitation by means
of general advertising or in any other manner, or (e) taken any other
action, which (in the case of
G-1-1
<PAGE>
any of the acts described in clauses (a) through (e) hereof) would
constitute a distribution of any Certificate under the Securities Act of
1933, as amended (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
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette-MAC#N9303-121
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services (CMBS) - First Union National Bank
Series 2000-C1
Re: First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series 2000-C1 (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 May 11, 2000 (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 May 1, 2000, among First Union
Commercial Mortgage Securities, Inc., as depositor, First Union National Bank,
as master servicer, ORIX Real Estate Capital Markets, LLC, 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, as
amended (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,
G-2-1
<PAGE>
pledge or transfer is being made in reliance on Rule 144A, or (ii) pursuant
to another exemption from registration under the Securities Act.
2. In the case of a Class A Certificate or Class IO Certificate, the
Transferee is either (A) not an Aemployee benefit plan@ subject to ERISA or
a Aplan@ described by Section 4975(e)(1) of the Code, or any entity deemed
to hold plan assets of the foregoing by reason of a plan=s investment in
such entity (each, a APlan@) or (B) qualifies as an accredited investor as
defined in Rule 501(a)(1) of Regulation D under the Securities Act and
either (1) at the time of such transfer, the Certificates are rated in one
of the top three rating categories by at least one Rating Agency, or (2)
the purchaser is an insurance company general account that is eligible for,
and satisfies all of the requirements of, Section III of Department of
Labor Prohibited Transaction Class Exemption 95-60.
In the case of a Subordinated Certificate, the Transferee is either
(A) not an Aemployee benefit plan@ subject to ERISA or a Aplan@ described
by Section 4975(e)(1) of the Code, or any entity deemed to hold plan assets
of the foregoing by reason of a plan=s investment in such entity (each, a
APlan@) or (B) an insurance company general account which is eligible for,
and satisfies all of the requirements for, exemptive relief under Section
III of Department of Labor Prohibited Transaction Class Exemption 95-60
(APTE 95-60").
3. 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.
4. 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:
[IN THE CASE OF THE UNREGISTERED CERTIFICATES]: 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-
G-2-2
<PAGE>
[IN THE CASE OF CLASS A AND CLASS IO CERTIFICATES]: NO TRANSFER OF THIS
CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY AEMPLOYEE BENEFIT
PLAN@ SUBJECT TO ERISA OR A APLAN@ DESCRIBED BY SECTION 4975(E)(1) OF THE
CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON
OF A PLAN=S INVESTMENT IN SUCH ENTITY (EACH, A APLAN@) UNLESS SUCH PLAN
QUALIFIES AS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1) OF
REGULATION D UNDER THE SECURITIES ACT AND EITHER (1) AT THE TIME OF SUCH
TRANSFER, THE CERTIFICATES ARE RATED IN ONE OF THE TOP THREE RATING
CATEGORIES BY AT LEAST ONE RATING AGENCY, OR (2) THE PURCHASER IS AN
INSURANCE COMPANY GENERAL ACCOUNT THAT IS ELIGIBLE FOR, AND SATISFIES ALL
OF THE REQUIREMENTS OF, SECTION III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS
ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION
OF THE FOREGOING.
[IN THE CASE OF SUBORDINATED CERTIFICATES]: NO TRANSFER OF THIS CERTIFICATE
OR ANY INTEREST THEREIN SHALL BE MADE TO ANY AEMPLOYEE BENEFIT PLAN@
SUBJECT TO ERISA OR A APLAN@ DESCRIBED BY SECTION 4975(E)(1) OF THE CODE,
OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A
PLAN=S INVESTMENT IN SUCH ENTITY (EACH, A APLAN@) UNLESS IT IS AN INSURANCE
COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE
REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 (APTE 95-60"). EACH PERSON WHO
ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT THE
FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
5. 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
G-2-3
<PAGE>
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.
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, as amended ("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.
____ 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, as
amended.
____ 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.
____ 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
<PAGE>
(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.
____ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
____ 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.
____ 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.
____ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974.
____ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
____ 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 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
<PAGE>
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 Transferred
Yes No 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 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:___________________________________
<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.
____ 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).
____ 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).
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
<PAGE>
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 Transferred
Yes No 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 this certification by the undersigned as of the date of such
purchase.
Print Name of Transferee or Adviser
By:_____________________________________
Name:___________________________________
Title:__________________________________
<PAGE>
EXHIBIT G-3
FORM OF TRANSFEREE CERTIFICATE
FOR NON-QIBs
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette-MAC#N9303-121
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services (CMBS) - First Union National Bank Commercial
Mortgage Trust, Series 2000-C1
Re: First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series 2000-C1 (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 May 11, 2000 (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 May 1, 2000, among First Union
Commercial Mortgage Securities, Inc., as depositor (the "Depositor"), First
Union National Bank, as master servicer, ORIX Real Estate Capital Markets, LLC,
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.
G-3-1
<PAGE>
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 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:
[IN THE CASE OF UNREGISTERED CERTIFICATES]: 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-
[IN THE CASE OF CLASS A AND CLASS IO CERTIFICATES]: NO TRANSFER OF THIS
CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY AEMPLOYEE BENEFIT PLAN@
SUBJECT TO ERISA OR A APLAN@ DESCRIBED BY SECTION 4975(E)(1) OF THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS SUCH PLAN QUALIFIES AS AN
ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1) OF REGULATION D UNDER THE
SECURITIES ACT AND EITHER (1) AT THE TIME OF SUCH TRANSFER, THE CERTIFICATES ARE
RATED IN ONE OF THE TOP THREE RATING
G-3-2
<PAGE>
CATEGORIES BY AT LEAST ONE RATING AGENCY, OR (2) THE PURCHASER IS AN INSURANCE
COMPANY GENERAL ACCOUNT THAT IS ELIGIBLE FOR, AND SATISFIES ALL OF THE
REQUIREMENTS OF, SECTION III OF DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO
HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
[IN THE CASE OF SUBORDINATED CERTIFICATES]: NO TRANSFER OF THIS CERTIFICATE
OR ANY INTEREST THEREIN SHALL BE MADE TO ANY AEMPLOYEE BENEFIT PLAN@ SUBJECT TO
ERISA OR A APLAN@ DESCRIBED BY SECTION 4975(E)(1) OF THE CODE, OR ANY ENTITY
DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN=S INVESTMENT IN
SUCH ENTITY (EACH, A APLAN@) UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT
WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE
RELIEF UNDER SECTION III OF DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 (APTE 95-60"). EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL
BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND
THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
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.
G-3-3
<PAGE>
6. The Transferee is an "accredited investor" as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities 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 CERTIFICATE
[Date]
Norwest Bank Minnesota, National Association
Norwest Center Sixth and Marquette-MAC#N9303-121
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services (CMBS) - First Union National Bank Commercial
Mortgage Trust, Series 2000-C1
Re: First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series 2000-C1 (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 an initial principal balance as of May 11, 2000 (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 May 1, 2000 (the "Pooling and Servicing
Agreement"), among First Union Commercial Mortgage Securities, Inc., as
depositor, First Union National Bank, as master servicer, ORIX Real Estate
Capital Markets, LLC, 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:
In the case of a Class A Certificate or a Class IO Certificate, the
Transferee is either (A) not an Aemployee benefit plan@ subject to ERISA or a
Aplan@ described by Section 4975(e)(1) of the Code, or any entity deemed to hold
plan assets of the foregoing by reason of a plan=s investment in such entity
(each, a APlan@) or (B) qualifies as an accredited investor as defined in Rule
501(a)(1) of Regulation D under the Securities Act and either (1) at the time of
such transfer, the Certificates are rated in one of the top three rating
categories by at least one Rating Agency, or (2) the purchaser is an insurance
company general account that is eligible for, and satisfies all of the
requirements of, Section III of Department of Labor Prohibited Transaction Class
Exemption 95-60.
H-1
<PAGE>
In the case of a Subordinated Certificate, the Transferee is either (A) not
an Aemployee benefit plan@ subject to ERISA or a Aplan@ described by Section
4975(e)(1) of the Code, or any entity deemed to hold plan assets of the
foregoing by reason of a plan=s investment in such entity (each, a APlan@) or
(B) an insurance company general account which is eligible for, and satisfies
all of the requirements for, exemptive relief under Section III of Department of
Labor Prohibited Transaction Class Exemption 95-60 (APTE 95-60").
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, Series 2000-C1, Class [R-I, R-II, R-III, R-IV] evidencing a
___% Percentage Interest in the Class to which its belongs (the "Class
[R-I, R-II, R-III, R-IV] Certificates"). Capitalized terms used but not
defined herein have the meanings assigned to such terms in the Pooling and
Servicing Agreement dated as of May 1, 2000, among First Union Commercial
Mortgage Securities, Inc., as Depositor, First Union National Bank as
Master Servicer, ORIX Real Estate Capital Markets, LLC, as Special Servicer
and Norwest Bank Minnesota, National Association.
2. That the Owner (i) is and will be a "Permitted Transferee" as of
________, _______ and (ii) is acquiring the Class [R-I, R-II, R-III, R-IV]
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 Internal
Revenue Code of 1986, as amended (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(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, 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
I-1-1
<PAGE>
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, 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, 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
is includable in gross income for federal tax income purposes regardless of
its source, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one
or more United States Persons have the authority to control all substantial
decisions of the trust, all within the meaning of Section 7701(a)(30) of
the Code.
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of the Class [R-I, R-II, R-III, R-IV] Certificates to
disqualified organizations under the Code that applies to all transfers of
the Class [R-I, R-II, R-III, R-IV] 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, R-IV] 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, R-IV] Certificates if at any
time during the taxable year of the 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, R-IV] Certificate
unless the transferee, or the transferee's agent, delivers to the Trustee,
among other things, an affidavit in substantially the
I-1-2
<PAGE>
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, R-IV] 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, R-IV] Certificates and the provisions of
Section 5.02 of the Pooling and Servicing Agreement under which the Class
[R-I, R-II, R-III, R-IV] 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, R-IV] 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, R-IV] Certificates, have sufficient assets
to pay any taxes owed by the holder of such Class [R-I, R-II, R-III, R-IV]
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, R-IV] Certificates.
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, R-IV] Certificates that the Owner intends to pay
taxes associated with holding the Class [R-I, R-II, R-III, R-IV]
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, R-IV] Certificates.
13. That the Owner is not acquiring the Class [R-I, R-II, R-III, R-IV]
Certificates with the intent to transfer any of the Class [R-I, R-II,
R-III, R-IV] Certificates to any person or
I-1-3
<PAGE>
entity that will not have sufficient assets to pay any taxes owed by the
holder of such Class [R-I, R-II, R-III, R-IV] Certificates, or that may
become insolvent or subject to a bankruptcy proceeding, for so long as the
Class [R-I, R-II, R-III, R-IV] Certificates remain outstanding.
14. That the Owner will, in connection with any transfer that it makes
of the Class [R-I, R-II, R-III, R-IV] 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, R-IV]
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 the Owner will, in connection with any transfer that it makes
of any Class [R-I, R-II, R-III, R-IV] 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, R-IV] 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, R-IV] Certificate; (ii) may become insolvent or subject to a
bankruptcy proceeding, for so long as the Class [R-I, R-II, R-III, R-IV]
Certificates remain outstanding; and (iii) is not a "Permitted Transferee".
16. That the Owner (i) calculated present values in accordance with
Proposed Treasury Regulation Sections 1.860E-1(c)(4)(iii) and
1.860E-1(c)(5) using a discount rate at least equal to the lesser of (A)
the applicable Federal rate prescribed by Section 1274(d) of the Code,
compounded semiannually, and (B) the rate at which the Owner regularly
borrows, in the ordinary course of its trade or business, substantial funds
from unrelated third parties, or (ii) calculated present values in such
manner as may be provided in, and otherwise complied with, applicable
temporary and/or final Treasury Regulations promulgated with respect to
Proposed Treasury Regulation Sections 1.860E-1(c)(4)(iii) and
1.860E-1(c)(5).
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 _____, ___.
[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 _____, _____.
________________________________________
NOTARY PUBLIC
COUNTY OF ______________________________
STATE OF _______________________________
My Commission expires the
____ day of ___________,
____.
I-1-5
<PAGE>
EXHIBIT I-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(d)(i)(D)
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette-MAC#N9303-121
Minneapolis, Minnesota 55479-0113
Attn: Corporate Trust Services (CMBS) - First Union National Bank Commercial
Mortgage Trust, Series 2000-C1
Re: First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series 2000-C1, Class [R-I, R-II, R-III, R-IV], 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, R-IV] Certificates (the "Class [R-I, R-II, R-III, R-IV]
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of May 1, 2000, among First
Union Commercial Mortgage Securities, Inc., as depositor, First Union National
Bank, as master servicer, ORIX Real Estate Capital Markets, LLC, as special
servicer, 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 represents and warrants
to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the Class
[R-I, R-II, R-III, R-IV] 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.
I-2-1
<PAGE>
3. The Transferor at the time of this transfer either (i)(A) has
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, and (B) has
determined that the present value of the anticipated tax liabilities
associated with holding of the Class [R-I, R-II, R-III, R-IV] Certificates
does not exceed the sum of (1) the present value of any consideration given
to the Transferee to acquire the Class [R-I, R-II, R-III, R-IV]
Certificates, (2) the present value of the expected future distributions on
the Class [R-I, R-II, R-III, R-IV] Certificates, and (3) the present value
of the anticipated tax savings associated with the holding the Class [R-I,
R-II, R-III, R-IV] Certificates as the REMIC generates losses (having made
such determination by (I) assuming that the Transferee pays tax at a rate
equal to the highest rate of tax specified in Section 11(b)(1) of the Code,
and (II) utilizing a discount rate for present valuations equal to the
applicable Federal rate prescribed by Section 1274(d) of the Code,
compounded semi-annually (or a lower discount rate based on the Transferee
having demonstrated that it regularly borrows, in the ordinary course of
its trade or business, substantial funds at such lower rate from unrelated
third parties)), or (ii) based on an adequate review of the relevant facts
and circumstances, neither knows nor should know that the Transferee would
be unwilling, or unable to pay any taxes due on its share of the taxable
income of [REMIC I, REMIC II, REMIC III, REMIC IV].
4. The Transferor understands that the transfer of the Class [R-I,
R-II, R-III, R-IV] 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 tests described
above in Paragraph 3(i) or 3(ii) have been met as to any transfer.
Very truly yours,
By:____________________________________
Name:__________________________________
Title:_________________________________
I-2-2
<PAGE>
EXHIBIT J-1
FORM OF NOTICE AND ACKNOWLEDGMENT
[Date]
Standard & Poor's Ratings Services
55 Water Street
New York, New York 10041
Fitch IBCA, Inc.
One State Street Plaza
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 May 1, 2000 relating to First Union National
Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 2000-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:__________________________________
Receipt acknowledged:
Standard & Poor's Ratings Services Fitch IBCA, Inc.
By:________________________________ By:_____________________________________
Title:_____________________________ Title:__________________________________
Date:______________________________ By:_____________________________________
J-1-2
<PAGE>
EXHIBIT J-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
Norwest Bank Minnesota, National Association
11000 Broken Land Parkway
Columbia, Maryland 21044-3562
Attn: First Union National Bank, Series 2000-C1
Ladies & Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement dated as of
May 1, 2000 relating to First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2000-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) of the Agreement as if it were the Special Servicer thereunder.
________________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
J-2-1
<PAGE>
EXHIBIT K
[RESERVED]
K-1
<PAGE>
EXHIBIT L
[RESERVED]
L-1
<PAGE>
EXHIBIT M
FORM OF CMSA PROPERTY FILE REPORT
M-1
<PAGE>
IV. CMSA PROPERTY FILE
<PAGE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "PROPERTY" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "P"
================================================================================
FORMAT
FIELD NAME NUMBER EXAMPLE
================================================================================
Current Allocated Percentage 20 Numeric 0.75
- --------------------------------------------------------------------------------
Current Allocated Ending Scheduled Loan 21 Numeric 5900900.00
Amount
- --------------------------------------------------------------------------------
Ground Lease (Y/S/N) 22 AN N
- --------------------------------------------------------------------------------
Total Reserve Balance 23 Numeric 25000.00
- --------------------------------------------------------------------------------
Most Recent Appraisal Date 24 AN YYYYMMDD
- --------------------------------------------------------------------------------
Most Recent Appraisal Value 25 Numeric 1000000.00
- --------------------------------------------------------------------------------
Date Asset Expected to Be Resolved or 26 AN YYYYMMDD
- --------------------------------------------------------------------------------
Date Asset Expected to Be Resolved or 26 AN YYYYMMDD
Foreclosed
- --------------------------------------------------------------------------------
Foreclosure Date 27 AN YYYYMMDD
- --------------------------------------------------------------------------------
REO Date 28 AN YYYYMMDD
- --------------------------------------------------------------------------------
Most Recent Physical Occupancy 29 Numeric 0.75
- --------------------------------------------------------------------------------
Occupancy As of Date 30 AN YYYYMMDD
- --------------------------------------------------------------------------------
Date Lease Rollover Review 31 AN YYYYMMDD
- --------------------------------------------------------------------------------
% Sq. Feet expiring 1-12 months 32 Numeric 0.2
- --------------------------------------------------------------------------------
% Sq. Feet expiring 13-24 months 33 Numeric 0.2
- --------------------------------------------------------------------------------
% Sq. Feet expiring 25-36 months 34 Numeric 0.2
- --------------------------------------------------------------------------------
% Sq. Feet expiring 37-48 months 35 Numeric 0.2
- --------------------------------------------------------------------------------
% Sq. Feet expiring 49-60 months 36 Numeric 0.2
- --------------------------------------------------------------------------------
Largest Tenant 37 AN Text
- --------------------------------------------------------------------------------
Square Feet of Largest Tenant 38 Numeric 15000
- --------------------------------------------------------------------------------
2nd Largest Tenant 39 AN Text
- --------------------------------------------------------------------------------
Square Feet of 2nd Largest Tenant 40 Numeric 15000
- --------------------------------------------------------------------------------
3rd Largest Tenant 41 AN Text
- --------------------------------------------------------------------------------
Square Feet of 3rd Largest Tenant 42 Numeric 15000
- --------------------------------------------------------------------------------
Fiscal Year End Month 43 Numeric MM
- --------------------------------------------------------------------------------
Contribution Financials As Of Date 44 AN YYYYMMDD
- --------------------------------------------------------------------------------
Revenue At Contribution 45 Numeric 1000000.00
- --------------------------------------------------------------------------------
Operating Expenses At Contribution 46 Numeric 1000000.00
- --------------------------------------------------------------------------------
NOI At Contribution 47 Numeric 1000000.00
================================================================================
================================================================================
<TABLE>
<CAPTION>
==============================================================================================
LOAN FIELD
DESCRIPTION/COMMENTS REFERENCE
==============================================================================================
<S> <C>
Maintained by servicer. If not supplied in by Issuer or Underwriter, use
Underwriting NOI or NCF to calculate
- ----------------------------------------------------------------------------------------------
Calculation based on Current Allocated Percentage and Current Ending
Scheduled Principal Balance (L7) for associated loan. L7
- ----------------------------------------------------------------------------------------------
Either Y=Yes, S=Subordinate, N=No ground lease S74
- ----------------------------------------------------------------------------------------------
For Maintenance, Repairs, & Environmental. (Excludes Tax & Insurance S77
Escrows). An amount should be printed if the value in Setup File field 77 is "Y"
- ----------------------------------------------------------------------------------------------
L74
- ----------------------------------------------------------------------------------------------
L75
- ----------------------------------------------------------------------------------------------
Could be different dates for different properties. If in Foreclosure-Expected L79
Date of Foreclosure and if REO - Expected Sale Date.
- ----------------------------------------------------------------------------------------------
L42
---------------------------------------------------------------------------------------------
L43
- ----------------------------------------------------------------------------------------------
L71
- ----------------------------------------------------------------------------------------------
Typically should be the effective date of the Rent Roll
- ----------------------------------------------------------------------------------------------
Rollover review to be completed every 12 months
- ----------------------------------------------------------------------------------------------
Apply to Property Types - RT, IN, WH, OF, MU, OT S62
- ----------------------------------------------------------------------------------------------
Apply to Property Types - RT, IN, WH, OF, MU, OT S62
- ----------------------------------------------------------------------------------------------
Apply to Property Types - RT, IN, WH, OF, MU, OT S62
- ----------------------------------------------------------------------------------------------
Apply to Property Types - RT, IN, WH, OF, MU, OT S62
- ----------------------------------------------------------------------------------------------
Apply to Property Types - RT, IN, WH, OF, MU, OT S62
- ----------------------------------------------------------------------------------------------
For Office, WH, Retail, Industrial, Other or Mixed Use, as applicable
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
For Office, WH, Retail, Industrial, Other or Mixed Use, as applicable
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
For Office, WH, Retail, Industrial, Other or Mixed Use, as applicable
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
Needed to indicate month ending for borrower's Fiscal Year. For example: "12"
- ----------------------------------------------------------------------------------------------
S72
- ----------------------------------------------------------------------------------------------
Should match the prospectus if available. At the Property Level S70
- ----------------------------------------------------------------------------------------------
Should match the prospectus if available. At the Property Level S71
- ----------------------------------------------------------------------------------------------
Should match the prospectus if available. At the Property Level S65
==============================================================================================
</TABLE>
<PAGE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "Property" File
(Data Record Layout)
================================================================================
FORMAT
FIELD NAME NUMBER EXAMPLE
================================================================================
DSCR (NOI) At Contribution 48 Numeric 1.5
- --------------------------------------------------------------------------------
Appraisal Value At Contribution 49 Numeric 1000000.00
- --------------------------------------------------------------------------------
50 YYYYMMDD
- --------------------------------------------------------------------------------
Physical Occupancy At Contribution 51 Numeric 0.9
- --------------------------------------------------------------------------------
52 YYYYMMDD
- --------------------------------------------------------------------------------
Preceding Fiscal Year Financial As of Date 53 AN YYYYMMDD
- --------------------------------------------------------------------------------
Preceding Fiscal Year Revenue 54 Numeric 1000000.00
- --------------------------------------------------------------------------------
Preceding Fiscal Year Operating Expenses 55 Numeric 1000000.00
- --------------------------------------------------------------------------------
Preceding Fiscal Year NOI 56 Numeric 1000000.00
- --------------------------------------------------------------------------------
Preceding Fiscal Yr Debt Service Amount 57 Numeric 1000000.00
- --------------------------------------------------------------------------------
Preceding Fiscal Year DSCR (NOI) 58 Numeric 1.30
- --------------------------------------------------------------------------------
Preceding Fiscal Year Physical Occupancy 59 Numeric 0.90
- --------------------------------------------------------------------------------
Second Preceding FY Financial As of Date 60 AN YYYYMMDD
- --------------------------------------------------------------------------------
Second Preceding Fiscal Year Revenue 61 Numeric 1000000.00
- --------------------------------------------------------------------------------
Second Preceding FY Operating Expenses 62 Numeric 1000000.00
- --------------------------------------------------------------------------------
Second Preceding Fiscal Year NOI 63 Numeric 1000000.00
- --------------------------------------------------------------------------------
Second Preceding FY Debt Service Amount 64 Numeric 1000000.00
- --------------------------------------------------------------------------------
Second Preceding Fiscal Year DSCR (NOI) 65 Numeric 1.3
- --------------------------------------------------------------------------------
Second Preceding FY Physical Occupancy 66 Numeric 0.9
- --------------------------------------------------------------------------------
Property Contribution Date 67 AN YYYYMMDD
- --------------------------------------------------------------------------------
Most Recent Revenue 68 Numeric 1000000.00
- --------------------------------------------------------------------------------
Most Recent Operating Expenses 69 Numeric 1000000.00
- --------------------------------------------------------------------------------
Most Recent NOI 70 Numeric 1000000.00
- --------------------------------------------------------------------------------
Most Recent Debt Service Amount 71 Numeric 1000000.00
- --------------------------------------------------------------------------------
Most Recent DSCR (NOI) 72 Numeric 2.55
- --------------------------------------------------------------------------------
Most Recent Financial As of Start Date 73 AN YYYYMMDD
- --------------------------------------------------------------------------------
Most Recent Financial As of End Date 74 AN YYYYMMDD
- --------------------------------------------------------------------------------
Most Recent Financial Indicator 75 AN TorY
- --------------------------------------------------------------------------------
NCF At Contribution 76 Numeric 1000000.00
- --------------------------------------------------------------------------------
DSCR (NCF) At Contribution 77 Numeric 1.5
- --------------------------------------------------------------------------------
Preceding Fiscal Year NCF 78 Numeric 1000000.00
================================================================================
<TABLE>
<CAPTION>
===============================================================================================
LOAN FIELD
DESCRIPTION/COMMENTS REFERENCE
===============================================================================================
<S> <C>
Should match the prospectus if available. S66
- -----------------------------------------------------------------------------------------------
S67
- -----------------------------------------------------------------------------------------------
S68
- -----------------------------------------------------------------------------------------------
S69
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
L58
- -----------------------------------------------------------------------------------------------
L52
- -----------------------------------------------------------------------------------------------
L53
- -----------------------------------------------------------------------------------------------
L54
- -----------------------------------------------------------------------------------------------
Calculate using P20 (percentage) to get the allocated amount for each property L55
- -----------------------------------------------------------------------------------------------
Uses the property NOI and the allocated debt service amount L56
- -----------------------------------------------------------------------------------------------
L57
- -----------------------------------------------------------------------------------------------
L65
- -----------------------------------------------------------------------------------------------
L59
- -----------------------------------------------------------------------------------------------
L60
- -----------------------------------------------------------------------------------------------
L61
- -----------------------------------------------------------------------------------------------
Calculate using P20 (percentage) to get the allocated amount for each property L62
- -----------------------------------------------------------------------------------------------
Uses the prooerty NOI and the allocated debt service amount L63
- -----------------------------------------------------------------------------------------------
L64
- -----------------------------------------------------------------------------------------------
Date Property was contributed L85
- -----------------------------------------------------------------------------------------------
Most Recent Revenue L66
- -----------------------------------------------------------------------------------------------
Most Recent Operating Expenses L67
- -----------------------------------------------------------------------------------------------
Most Recent Net Operating Income L68
- -----------------------------------------------------------------------------------------------
Calculate using P20 (percentage) to get the allocated amount for each property L69
- -----------------------------------------------------------------------------------------------
Uses the property NOI and the allocated debt service amount L70
- -----------------------------------------------------------------------------------------------
Start date used to calculate Most Recent information either YTD or trailing 12
months L72
- -----------------------------------------------------------------------------------------------
End date used to calculate Most Recent information either YTD or trailing 12 months L73
- -----------------------------------------------------------------------------------------------
T=Trailing 12 months Y=Year to Date L82
- -----------------------------------------------------------------------------------------------
Net Cash Flow At Contribution. Should match the prospectus if available. S83
- -----------------------------------------------------------------------------------------------
DSCR At Contribution using NCF to calculate. Should match the prospectus if available. S84
- -----------------------------------------------------------------------------------------------
Preceding Fiscal Year Net Cash Flow related to Financial As of Date P53. L92
===============================================================================================
</TABLE>
<PAGE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "PROPERTY" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "P"
================================================================================
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE
================================================================================
Preceding Fiscal Year DSCR (NCF) 79 Numeric 2.55
- --------------------------------------------------------------------------------
Second Preceding FY NCF 80 Numeric 1000000.00
- --------------------------------------------------------------------------------
Second Preceding FY DSCR (NCF) 81 Numeric 2.55
- --------------------------------------------------------------------------------
Most Recent NCF 82 Numeric 1000000.00
- --------------------------------------------------------------------------------
Most Recent DSCR (NCF) 83 Numeric 2.55
- --------------------------------------------------------------------------------
NOI/NCF Indicator 84 AN Text
- --------------------------------------------------------------------------------
Deferred Maintenance Flag 85 AN N
================================================================================
<TABLE>
<CAPTION>
======================================================================================================
LOAN FIELD
DESCRIPTION/COMMENTS REFERENCE
======================================================================================================
Preceding Fiscal Year Debt Service Coverage Ratio using NCF related to Financial L93
As of Date P53.
- ------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year Net Cash Flow related to Financial As of Date P60. L94
- ------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year Debt Service Coverage Ratio using Net Cash Flow L95
related to Financial As of Date P60.
- ------------------------------------------------------------------------------------------------------
Most Recent Net Cash Flow related to Financial As of Date P74. L96
- ------------------------------------------------------------------------------------------------------
Most Recent Debt Service Coverage Ratio using Net Cash Flow related to Financial L97
As of Date P74.
- ------------------------------------------------------------------------------------------------------
Indicates how NOI or Net Cash Flow was calculated should be the same for each L90
financial period. See NOI/NCF Indicator Legend.
- ------------------------------------------------------------------------------------------------------
Either Y=Yes or N=No, Deferred Maintenance
======================================================================================================
<CAPTION>
====================================================================================================================================
PROPERTY TYPES CODE NOI/NCF INDICATOR
LEGEND LEGEND
==================================================== ===================================================================
<S> <C> <C> <C> <C>
MF Multifamily CMSA Calculated using CMSA standard
- ---------------------------------------------------- -------------------------------------------------------------------
RT Retail Calculated using a definition given in the PSA
- ---------------------------------------------------- -------------------------------------------------------------------
HC Health Care U/W Calculated using the underwriting method
- ---------------------------------------------------- ===================================================================
IN Industrial
- ----------------------------------------------------
WH Warehouse
- ----------------------------------------------------
MH Mobile Home Park
- ----------------------------------------------------
OF Office
- ----------------------------------------------------
MU Mixed Use
- ----------------------------------------------------
LO Lodging
- ----------------------------------------------------
- ----------------------------------------------------
OT Other
====================================================
</TABLE>
<PAGE>
EXHIBIT N
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
The Form of Comparative Financial Status Report for this Agreement is set forth
in Annex K-1 to the Prospectus Supplement and is hereby incorporated.
N-1
<PAGE>
CMSA INVESTOR REPORTING PACKAGE
DELINQUENT LOAN STATUS REPORT
as of_______________________
(Loan Level Report)
S4 L8
LOAN PAID
PROSPECTUS THRU COMMENTS
ID DATE
LOAN(S) DELINQUENT AS OF MONTH END
<PAGE>
EXHIBIT O
FORM OF REO STATUS REPORT
The Form of REO Status Report for this Agreement is set forth in Annex G-1 to
the Prospectus Supplement and is hereby incorporated.
O-1
<PAGE>
EXHIBIT P
FORM OF WATCH LIST
The Form of Watch List for this Agreement is set forth in Annex H-1 to the
Prospectus Supplement and is hereby incorporated.
P-1
<PAGE>
EXHIBIT Q
FORM OF DELINQUENT LOAN STATUS REPORT
The Form of Delinquent Loan Status Report for this Agreement is set forth in
Annex D-1 to the Prospectus Supplement and is hereby incorporated.
Q-1
<PAGE>
EXHIBIT R
FORM OF HISTORICAL LOAN MODIFICATION REPORT
The Form of Historical Loan Modification Report for this Agreement is set forth
in Annex E-1 to the Prospectus Supplement and is hereby incorporated.
R-1
<PAGE>
EXHIBIT S
FORM OF HISTORICAL LIQUIDATION REPORT
The Form of Historical Liquidation Report for this Agreement is set forth in
Annex F-1 to the Prospectus Supplement and is hereby incorporated.
S-1
<PAGE>
EXHIBIT T
FORM OF NOI ADJUSTMENT WORKSHEET
The Form of NOI Adjustment Worksheet for this Agreement is set forth in Annex
J-1 to the Prospectus Supplement and is hereby incorporated.
T-1
<PAGE>
EXHIBIT U
FORM OF OPERATING STATEMENT ANALYSIS
The Form of Operating Statement Analysis for this Agreement is set forth in
Annex I-1 to the Prospectus Supplement and is hereby incorporated.
U-1
<PAGE>
EXHIBIT V
FORM OF INTERIM DELINQUENT LOAN STATUS REPORT
V-1
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<CAPTION>
====================================================================================================================================
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
====================================================================================================================================
<S> <C> <C> <C> <C>
Preceding Fiscal Year DSCR (NOI) 56 Numeric 2.55 P58 - If Multiple properties populate
using the "DSCR Indicator Legend"
rule. Preceding Fiscal Yr Debt Svc
Cvrge Ratio using NOI
- ------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Physical Occupancy 57 Numeric 0.85 P59 - If Multiple properties, Use
weighted average by using the
calculation [Current Allocated (Prop)
* Occupancy (Oper)] for each
Property, if missing any then leave
empty
- ------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Financial As of Date 58 AN YYYYMMDD P53 - If Multiple properties and all
the same then print the date, if
missing any then leave empty
- ------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year Revenue 59 Numeric 1000.00 P61 - If Multiple properties then sum
the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
- ------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year Operating Expenses 60 Numeric 1000.00 P62 - If Multiple properties then sum
the value, is missing any then
populate using the "DSCR Indicator
Legend" rule
- ------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal year NOI 61 Numeric 1000.00 P63 - If Multiple properties then sum
the value, is missing any then
populate using the "DSCR Indicator
Legend" rule
- ------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal year Debt Service Amount 62 Numeric 1000.00 P64 - If Multiple properties then sum
the value, is missing any then
populate using the "DSCR Indicator
Legend" rule
- ------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal year DSCR (NOI) 63 Numeric 2.55 P65 - If Multiple properties populate
using the "DSCR Indicator Legend"
rule. Second Preceding Fiscal Year
Debt Service Coverage Ratio using NOI
- ------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal year Physical Occupancy 64 Numeric 0.85 P66 - If Multiple properties, Use
weighted average by using the
calculation [Current Allocated %
(Prop) * Occupancy (Oper)] for each
Property, if missing any then leave
empty
- ------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year Financial As of Date 65 AN YYYYMMDD P60 - If Multiple properties and all
the same then print the date, if
missing any then leave empty
- ------------------------------------------------------------------------------------------------------------------------------------
Most Recent Revenue 66 Numeric 1000 P68 - If Multiple properties then sum
the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
- ------------------------------------------------------------------------------------------------------------------------------------
Most Recent Operating Expenses 67 Numeric 1000.00 P69 - If Multiple properties then the
sum the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
- ------------------------------------------------------------------------------------------------------------------------------------
Most Recent NOI 68 Numeric 1000.00 P70 - If Multiple properties then sum
the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
- ------------------------------------------------------------------------------------------------------------------------------------
Most Recent Debt Service Amount 69 Numeric 1000.00 P71 - If Multiple properties then sum
the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
- ------------------------------------------------------------------------------------------------------------------------------------
Most Recent DSCR (NOI) 70 Numeric 2.55 P72 - If Multiple properties populate
using the "DSCR Indicator Legend"
rule. Most Recent Debt Service
Coverage Ratio, using NOI
- ------------------------------------------------------------------------------------------------------------------------------------
Most Recent Physical Occupancy 71 Numeric 0.85 P29 - If Multiple properties, Use
weighted average by using the
calculation [Current Allocated %
(Prop) * Occupance (Oper)] for each
Property, if missing any then leave
empty
====================================================================================================================================
</TABLE>
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<CAPTION>
====================================================================================================================================
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
====================================================================================================================================
<S> <C> <C> <C> <C>
Most Recent Financial As of Start Date 72 AN YYYYMMDD P73 - If Multiple properties and all
the same then print the date, if
missing any then leave empty
- ------------------------------------------------------------------------------------------------------------------------------------
Most Recent Financial As of End Date 73 AN YYYYMMDD P74 - If Multiple properties and all
the same then print the date, if
missing any then leave empty
- ------------------------------------------------------------------------------------------------------------------------------------
Most Recent Appraisal Date 74 AN YYYYMMDD P24 - If Multiple properties and all
the same then print the date, if
missing any then leave empty
- ------------------------------------------------------------------------------------------------------------------------------------
Most Recent Appraisal Value 75 Numeric 100000 P25 - If Multiple properties then sum
the value, if missing any then leave
empty
- ------------------------------------------------------------------------------------------------------------------------------------
Workout Strategy Code 76 Numeric 1 See Workout Strategy Codes Legend
- ------------------------------------------------------------------------------------------------------------------------------------
Most Recent Special Servicer Transfer Date 77 AN YYYYMMDD Date Transferred To The Special
Servicer
- ------------------------------------------------------------------------------------------------------------------------------------
Most Recent Master Servicer Return Date 78 AN YYYYMMDD Date Returned To The Master Servicer
or Primary Servicer
- ------------------------------------------------------------------------------------------------------------------------------------
Date Asset Expected to be Resolved or Foreclosed 79 AN YYYYMMDD P26 - If Multiple properties then
print the latest date from the
affiliated properties. If in
Foreclosure - Expected Date of
Foreclosure and if REO - Expected
Sale Date
- ------------------------------------------------------------------------------------------------------------------------------------
Blank 80 AN Blank Left blank on purpose. (Note: was
previously Year Renovated. Use the
Property File field 15 instead)
- ------------------------------------------------------------------------------------------------------------------------------------
Current Hyper Amortizing Date 81 AN YYYYMMDD S79 - Current Anticipated Repayment
Date. Date will be the same as setup
file unless the loan is modified and
a new date assigned
- ------------------------------------------------------------------------------------------------------------------------------------
Most Recent Financial Indicator 82 AN T or Y P75 - T = Trailing 12 months Y = Year
to Date, Check Start & End Date
Applied to field L66 to L73. If
Multiple properties and all the same
then print the value, if missing any
or if the values are not the same,
then leave empty.
- ------------------------------------------------------------------------------------------------------------------------------------
Last Setup Change Date 83 AN YYYYMMDD S82 - Distribution Date that
information changed last in the setup
file by loan
- ------------------------------------------------------------------------------------------------------------------------------------
Last Loan Contribution Date 84 AN YYYYMMDD Date the loan was contributed
- ------------------------------------------------------------------------------------------------------------------------------------
Last Property Contribution Date 85 AN YYYYMMDD P67 - Date the latest property or
properties were contributed. For
Multiple properties print the latest
date from the affiliated properties
- ------------------------------------------------------------------------------------------------------------------------------------
Number of Properties 86 Numeric 13.00 S54 - The Number of Properties
Underlying the Mortgage Loan
- ------------------------------------------------------------------------------------------------------------------------------------
Preceding Year DSCR Indicator 87 AN Text Flag used to explain how the DSCR was
calculated when there are multiple
properties. See DSCR Indicator
Legend.
- ------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Year DSCR Indicator 88 AN Text Flag used to explain how the DSCR was
calculated when there are multiple
properties. See DSCR Indicator
Legend.
- ------------------------------------------------------------------------------------------------------------------------------------
Most Recent DSCR Indicator 89 AN Text Flag used to explain how the DSCR was
calculated when there are multiple
properties. See DSCR Indicator
Legend.
- ------------------------------------------------------------------------------------------------------------------------------------
NOI/NCF Indicator 90 AN Text Indicates how NOI or Net Cash Flow
was calculated should be the same for
each financial period. See NOI/NCF
Indicator Legend. P84 - If Multiple
Properties and all the same then
print value, if missing any or if the
values are not the same, then leave
empty.
- ------------------------------------------------------------------------------------------------------------------------------------
Date of Assumption 91 AN YYYYMMDD Date the loan last assumed by a new
borrower - empty if never assume
====================================================================================================================================
</TABLE>
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<CAPTION>
====================================================================================================================================
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
====================================================================================================================================
<S> <C> <C> <C> <C>
Preceding Fiscal Year NCF 92 Numeric 1000.00 P78 - Preceding Fiscal Year Net Cash
Flow related to Financial As of Date
L58. If Multiple properties then sum
the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
- ------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year DSCR (NCF) 93 Numeric 2.55 P79 - Preceding Fiscal Yr Debt
Service Coverage Ratio using NCF
related to Financial As of Date L58.
If Multiple properties populate using
the "DSCR Indicator Legend" rule
- ------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year NCF 94 Numeric 1000.00 P80 - Second Preceding Fiscal Year
Net Cash Flow related to Financial As
of Date L65. If Multiple properties
then sum the value, if missing any
then populate using the "DSCR
Indicator Legend" rule
- ------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year DSCR (NCF) 95 Numeric 2.55 P81 - Second Preceding Fiscal Year
Debt Service Coverage Ratio using Net
Cash Flow related to Financial As of
Date L65. If Multiple properties
populate using the "DSCR Indicator
Legend" rule
- ------------------------------------------------------------------------------------------------------------------------------------
Most Recent NCF 96 Numeric 1000.00 P82 - Most Recent Net Cash Flow
related to Financial As of Ending
Date L73. If Multiple properties then
sum the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
- ------------------------------------------------------------------------------------------------------------------------------------
Most Recent DSCR (NCF) 97 Numeric 1000.00 P83 - Most Recent Debt Service
Coverage Ratio using Net Cash Flow
related to Financial As of Ending
Date L73. If Multiple properties
populate using the "DSCR Indicator
Legend" rule
- ------------------------------------------------------------------------------------------------------------------------------------
Defeasance Status 98 AN Text See Defeasance Status Legend
- ------------------------------------------------------------------------------------------------------------------------------------
ARA Amount 99 Numeric 1000.00 Appraisal Reduction Amount - Excess
of the principal balance over the
defined appraisal % or as defined in
the trust documents
- ------------------------------------------------------------------------------------------------------------------------------------
ARA Date 100 AN YYYYMMDD Date of appraisal used to calculate
ARA
- ------------------------------------------------------------------------------------------------------------------------------------
Credit Tenant Lease 101 AN Y S87 - Y = Yes, N = No
====================================================================================================================================
</TABLE>
<PAGE>
EXHIBIT W
FORM OF CMSA LOAN FILE REPORT
W-1
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
<CAPTION>
====================================================================================================================================
FORMAT
FIELD NAME NUMBER EXAMPLE DESCRIPTION/COMMENTS
====================================================================================================================================
<S> <C> <C> <C> <C>
Neg am/Deferred Interest Amount 26 Numeric 1000.00 Negative Amortization/Deferred Interest Amount Due
For The Current Period
- ------------------------------------------------------------------------------------------------------------------------------------
Unscheduled Principal Collections 27 Numeric 1000.00 Unscheduled Payments Of Principal Received During The
Related Collection Period
- ------------------------------------------------------------------------------------------------------------------------------------
Other Principal Adjustments 28 Numeric 1000.00 Unscheduled Principal Adjustments For The Related
Collection Period
- ------------------------------------------------------------------------------------------------------------------------------------
Liquidation/Prepayment Date 29 AN YYYYMMDD Date Unscheduled Payment Of Principal Received
- ------------------------------------------------------------------------------------------------------------------------------------
Prepayment Penalty/Yld Maint Rec'd 30 Numeric 1000.00 Additional Payment Req'd From Borrower Due To
Prepayment Of Loan Prior to Maturity
- ------------------------------------------------------------------------------------------------------------------------------------
Prepayment Interest Excess (Shortfall) 31 Numeric 1000.00 Interest Shortfall of Excess as calculated by
Servicer per the Trust documents
- ------------------------------------------------------------------------------------------------------------------------------------
Liquidation/Prepayment Code 32 Numeric 1 See Liquidation/Prepayment Codes Legend
- ------------------------------------------------------------------------------------------------------------------------------------
Most Recent ASER Amount 33 Numeric 1000.00 Appraisal Subordinated Entitlement Reduction - The
difference between a full advance and the reduced
advance is the ASER or as defiend in the Trust
documents
- ------------------------------------------------------------------------------------------------------------------------------------
Blank 34 AN Blank Left blank on purpose. (Note: was previously Most
Recent ASER Date. Field is not considered applicable
to ASER.)
- ------------------------------------------------------------------------------------------------------------------------------------
Cumulative ASER Amount 35 Numeric 1000.00 Cumulative Appraisal Subordinated Entitlement
Reduction
- ------------------------------------------------------------------------------------------------------------------------------------
Actual Balance 36 Numeric 100000.00 Outstanding Actual Principal Balance At The End Of
The Current Period
- ------------------------------------------------------------------------------------------------------------------------------------
Total P&I Advance Outstanding 37 Numeric 1000.00 Outstanding P&I Advances At The End Of The Current
Period
- ------------------------------------------------------------------------------------------------------------------------------------
Total T&I Advance Outstanding 38 Numeric 1000.00 Outstanding Taxes and Insurance Advances At The End
Of The Current Period
- ------------------------------------------------------------------------------------------------------------------------------------
Other Expense Advance Outstanding 39 Numeric 1000.00 Other Outstanding Advances At The End Of The Current
Period
- ------------------------------------------------------------------------------------------------------------------------------------
Status of Loan 40 AN 1 See Status Of Loan Legend
- ------------------------------------------------------------------------------------------------------------------------------------
In Bankruptcy 41 AN Y Bankruptcy Status Of Loan (If In Bankruptcy "Y", Else
"N")
- ------------------------------------------------------------------------------------------------------------------------------------
Foreclosure Date 42 AN YYYYMMDD P27 - If Multiple properties have the same date then
print that date otherwise leave empty
- ------------------------------------------------------------------------------------------------------------------------------------
REO Date 43 AN YYYYMMDD P28 - If Multiple properties have the same dae then
print that date otherwise leave empty
- ------------------------------------------------------------------------------------------------------------------------------------
Bankruptcy Date 44 AN YYYYMMDD Date Of Bankruptcy
- ------------------------------------------------------------------------------------------------------------------------------------
Net Proceeds Received on Liquidation 45 Numeric 100000.00 Net Proceeds Rec'd On Liquidation To Be Remitted to
the Trust per the Trust Documents
- ------------------------------------------------------------------------------------------------------------------------------------
Liquidation Expense 46 Numeric 100000.00 Expenses Associated With The Liq'n To Be Netted from
the Trust per the Trust Documents
- ------------------------------------------------------------------------------------------------------------------------------------
Realized Loss to Trust 47 Numeric 10000.00 Liquidation Balance Less Net Liquidation Proceeds
Received (as defined in Trust documents)
- ------------------------------------------------------------------------------------------------------------------------------------
Date of Last Modification 48 AN YYYYMMDD Date Loan Was Modified
- ------------------------------------------------------------------------------------------------------------------------------------
Modification Code 49 Numeric 1 See Modification Codes Legend
- ------------------------------------------------------------------------------------------------------------------------------------
Modified Note Rate 50 Numeric 0.09 Note Rate Loan Modified To
- ------------------------------------------------------------------------------------------------------------------------------------
Modified Payment Rate 51 Numeric 0.09 Payment Rate Loan Modified To
- ------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Revenue 52 Numeric 1000.00 P54 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
- ------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Operating Expenses 53 Numeric 1000.00 P55 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
- ------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal year NOI 54 Numeric 1000.00 P56 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
- ------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Debt Svc Amount 55 Numeric 1000.00 P57 - If Multiple properties then sum the value, if
missing any then populate using the "DSCR Indicator
Legend" rule
====================================================================================================================================
</TABLE>
<PAGE>
EXHIBIT X-1
FORM OF CERTIFICATEHOLDER CONFIRMATION CERTIFICATE
REQUEST BY BENEFICIAL HOLDER
[Date]
Norwest Bank Minnesota, National Association
7485 New Horizon Way
Frederick, Maryland 21703
Facsimile: (301) 846-8195
Telephone: (301) 815-6600
Attn:: Corporate Trust Services (CMBS) B First Union National Bank
Commercial Mortgage Trust, Series 2000-C1
Re: First Union National Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2000-C1
In accordance with Section 3.15 of the Pooling and Servicing Agreement
dated as of May 1, 2000 (the "Pooling and Servicing Agreement"), among First
Union Commercial Mortgage Securities, Inc. as depositor (the "Depositor"), First
Union National Bank, as master servicer, ORIX Real Estate Capital Markets, LLC,
as special servicer, and Norwest Bank Minnesota, National Association, as
trustee (in such capacity, the "Trustee"), with respect to the First Union
National Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2000-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 access to the information posted to
the Trustee's Internet Website pursuant to Section 4.02 of the Pooling and
Servicing Agreement, or 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 its agents and auditors), 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
X-1-1
<PAGE>
whatsoever, in whole or in part; provided that the undersigned may provide
all or any part of the Information to any other person or entity that holds
or is contemplating the purchase of any Certificate or interest therein,
but only if such person or entity confirms in writing such ownership
interest or prospective ownership interest and agrees to keep it
confidential.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities
Act of 1933, as amended, (the "Securities Act"), or the Securities Exchange
Act of 1934, as amended, or would require registration of any Certificate
pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Trustee, the Master Servicer, the Special Servicer 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:__________________________________
Phone:__________________________________
X-1-2
<PAGE>
EXHIBIT X-2
FORM PROSPECTIVE PURCHASER CERTIFICATE
[Date]
Norwest Bank Minnesota, National Association
7485 New Horizon Way
Frederick, Maryland 21703
Facsimile: (301) 846-8195
Telephone: (301) 815-6600
Attention: Corporate Trust Services (CMBS) B First Union National Bank
Commercial Mortgage Trust, Series 2000-C1
Re: First Union National Bank Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates,
Series 2000-C1 (the "Certificates")
In accordance with Section 3.15 of the Pooling and Servicing Agreement,
dated as of May 1, 2000 (the "Pooling and Servicing Agreement"), among First
Union Commercial Mortgage Securities, Inc., as depositor (the "Depositor"),
First Union National Bank as master servicer, ORIX Real Estate Capital Markets,
LLC, as special servicer, and Norwest Bank Minnesota, National Association as
trustee (in such capacity, the "Trustee"), with respect to the First Union
National Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2000-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 access to the information posted to
the Trustee's Internet Website pursuant to Section 4.02 of the Pooling and
Servicing Agreement, or 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 its agents and auditors), 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.
X-1
<PAGE>
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, the Master Servicer, the Special Servicer 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:__________________________________
Phone:__________________________________
X-2
<PAGE>
EXHIBIT Y
FORM OF CMSA BOND FILE REPORT
Y-1
<PAGE>
VIII. CMSA BOND
LEVEL FILE
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "BOND LEVEL" FILE
BOND LEVEL ONLY - REFLECTS DISTRIBUTION STATEMENTS
<CAPTION>
====================================================================================================================================
<S> <C>
SPECIFICATIONS DESCRIPTION/COMMENTS
====================================================================================================================================
Character Set ASCII
- ------------------------------------------------------------------------------------------------------------------------------------
Field Delineation Comma
====================================================================================================================================
<CAPTION>
====================================================================================================================================
FORMAT
FIELD NAME # TYPE EXAMPLE DESCRIPTION/COMMENTS
====================================================================================================================================
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
(Consistent With CMSA Periodic Loan
File)
- ------------------------------------------------------------------------------------------------------------------------------------
Distribution Date 2 AN YYYYMMDD Date Payments Made to
Certficateholders
- ------------------------------------------------------------------------------------------------------------------------------------
Record Date 3 AN YYYYMMDD Date Class Must Be Held As Of To Be
Considered Holder of Record
- ------------------------------------------------------------------------------------------------------------------------------------
Class Name/Class Id 4 AN A-1 Unique Class Identification Mnemonic
- ------------------------------------------------------------------------------------------------------------------------------------
Cusip 5 AN 999999AA1 Cusip # (Null If No Cusip Exists)
- ------------------------------------------------------------------------------------------------------------------------------------
Original Balance 6 Numeric 1000000 The Class Balance At Inception Of The
Issue
- ------------------------------------------------------------------------------------------------------------------------------------
Notional Flag 7 AN Y "Y" For Notional
- ------------------------------------------------------------------------------------------------------------------------------------
Beginning Balance 8 Numeric 100000 The Outstanding Principal Balance Of
The Class At The Beginning Of The
Current Period
- ------------------------------------------------------------------------------------------------------------------------------------
Scheduled Principal 9 Numeric 1000 The Scheduled Principal Paid
- ------------------------------------------------------------------------------------------------------------------------------------
Unscheduled Principal 10 Numeric 1000 The Unscheduled Principal Paid
- ------------------------------------------------------------------------------------------------------------------------------------
Total Principal Distribution 11 Numeric 1000 Total Principal Payment Made
- ------------------------------------------------------------------------------------------------------------------------------------
Deferred Interest 12 Numeric 1000 Any Interest Added To The Class
Balance Including Negative
Amortization
- ------------------------------------------------------------------------------------------------------------------------------------
Realized Loss (Gain) 13 Numeric 1000 The Total Realized Loss of (Gain)
Allocated
- ------------------------------------------------------------------------------------------------------------------------------------
Cumulative Realized Losses 14 Numeric 100000 Realized Losses Allocated
Cumulative-To-Date
- ------------------------------------------------------------------------------------------------------------------------------------
Ending Balance 15 Numeric 1000 Outstanding Principal Balance Of The
Class At The End Of the Current
Period
- ------------------------------------------------------------------------------------------------------------------------------------
Current Index Rate 16 Numeric 0.055 The Current Index Rate Applicable To
The Calculation Of Current Period
Remittance Interest Rate
- ------------------------------------------------------------------------------------------------------------------------------------
Current Remittance Rate/Pass-Through Rate 17 Numeric 0.075 Annualized Interest Rate Applicable
To The Calculation Of Current Period
Remittance Interest
- ------------------------------------------------------------------------------------------------------------------------------------
Accrual Method 18 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360,
4=Actual/Actual, 5=Actual/366
- ------------------------------------------------------------------------------------------------------------------------------------
Current Accrual Days 19 Numeric 30 The Number Of Accrual Days Applicable
To The Calculation Of Current Period
Remittance Interest
- ------------------------------------------------------------------------------------------------------------------------------------
Interest Accrued 20 Numeric 1000 The Amount Of Accrued Interest
- ------------------------------------------------------------------------------------------------------------------------------------
Prepayment Penalty/Premium Allocation 21 Numeric 1000 Total Amount Of Prepayment Penalties
Allocated
- ------------------------------------------------------------------------------------------------------------------------------------
Yield Maintenance Allocation 22 Numeric 1000 Total Amount Of Yield Maintenance
Penalties Allocated
- ------------------------------------------------------------------------------------------------------------------------------------
Other Interest Distribution 23 Numeric 1000 Other Specific Additions To Interest
- ------------------------------------------------------------------------------------------------------------------------------------
Prepayment Interest Shortfall 24 Numeric 1000 Total Interest Adjustments For PPIS
- ------------------------------------------------------------------------------------------------------------------------------------
Appraisal Reduction Allocation 25 Numeric 1000 Total Current Appraisal Reduction
Allocated
- ------------------------------------------------------------------------------------------------------------------------------------
Other Interest Shortfall 26 Numeric 1000 Total Interest Adjustments Other Than
PPIS
====================================================================================================================================
</TABLE>
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "BOND LEVEL" FILE
BOND LEVEL ONLY - REFLECTS DISTRIBUTION STATEMENTS
<CAPTION>
====================================================================================================================================
FORMAT
FIELD NAME # TYPE EXAMPLE DESCRIPTION/COMMENTS
====================================================================================================================================
<S> <C> <C> <C> <C>
Total Interest Distribution 27 Numeric 1000 The Total Interest Payment Made
- ------------------------------------------------------------------------------------------------------------------------------------
Cumulative Appraisal Reduction 28 Numeric 1000 Total Cumulative Appraisal
Reduction Allocated
- ------------------------------------------------------------------------------------------------------------------------------------
Cumulative Prepayment Penalty/Premium Allocation 29 Numeric 1000 Total Amount Of Prepayment
Penalties Allocated To Date
- ------------------------------------------------------------------------------------------------------------------------------------
Cumulative Yield Maintenance Allocation 30 Numeric 1000 Total Amount Of Yield Maintenance
Penalties Allocated To Date
- ------------------------------------------------------------------------------------------------------------------------------------
Beginning Unpaid Interest Balance 31 Numeric 1000 Outstanding Interest Shortfall At
The Beginning Of The Current Period
- ------------------------------------------------------------------------------------------------------------------------------------
Ending Unpaid Interest Balance 32 Numeric 1000 Outstanding Interest Shortfall At
The End Of The Current Period
- ------------------------------------------------------------------------------------------------------------------------------------
DCR - Original Rating 33 AN AAA The Original Rating Of The Class By
Duff & Phelps
- ------------------------------------------------------------------------------------------------------------------------------------
DCR - Most Recent Rating 34 AN AAA The Most Recent Rating Of The Class
By Duff & Phelps
- ------------------------------------------------------------------------------------------------------------------------------------
DCR - Date Transmitted from Rating Agency 35 AN YYYYMMDD The Date On Which The Most Recent
Rating Was Provided To The Trustee
By Moody's
- ------------------------------------------------------------------------------------------------------------------------------------
Fitch - Original Rating 36 AN AAA The Original Rating Of The Class By
Fitch
- ------------------------------------------------------------------------------------------------------------------------------------
Fitch - Most Recent Rating 37 AN AAA The Most Recent Rating Of the Class
By Fitch
- ------------------------------------------------------------------------------------------------------------------------------------
Fitch - Date Transmitted from Rating Agency 38 AN YYYYMMDD The Date On Which the Most Recent
Rating Was Provided To The Trustee
By Fitch
- ------------------------------------------------------------------------------------------------------------------------------------
Moody's - Original Rating 39 AN AAA The Original Rating Of The Class By
Moody's
- ------------------------------------------------------------------------------------------------------------------------------------
Moody's - Most Recent Rating 40 AN AAA The Most Recent Rating Of the Class
By Moody's
- ------------------------------------------------------------------------------------------------------------------------------------
Moody's - Date Transmitted from Rating Agency 41 AN YYYYMMDD The Date On Which The Most Recent
Rating Was Provided To The Trustee
By Moody's
- ------------------------------------------------------------------------------------------------------------------------------------
Standard & Poors - Original Rating 42 AN AAA The Original Rating Of The Class By
Standard & Poors
- ------------------------------------------------------------------------------------------------------------------------------------
Standard & Poors - Most Recent Rating 43 AN AAA The Most Recent Rating Of The Class
By Standard & Poors
- ------------------------------------------------------------------------------------------------------------------------------------
Standard & Poors - Date Transmitted from Rating Agency 44 AN YYYYMMDD The Date On Which The Most Recent
Rating Was Provided To the Trustee
By Standard & Poors
====================================================================================================================================
</TABLE>
<PAGE>
EXHIBIT Z
FORM OF CMSA COLLATERAL FILE REPORT
Z-1
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "COLLATERAL SUMMARY" FILE
COLLATERAL LEVEL SUMMARY - SUMMARIZES CMSA LOAN PERIODIC UPDATE FILE
<CAPTION>
====================================================================================================================================
<S> <C>
SPECIFICATIONS DESCRIPTION/COMMENTS
====================================================================================================================================
Character Set ASCII
- ------------------------------------------------------------------------------------------------------------------------------------
Field Delineation Comma
====================================================================================================================================
<CAPTION>
====================================================================================================================================
PER FORMAT
FIELD NAME REF # TYPE EXAMPLE DESCRIPTION/COMMENTS
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
- ------------------------------------------------------------------------------------------------------------------------------------
Group ID 2 AN XXX97001 Unique Identification Number Assigned
To Each Loan Group Within An Issue
- ------------------------------------------------------------------------------------------------------------------------------------
Distribution Date 3 AN YYYYMMDD Date Payments Made To Certficateholders
- ------------------------------------------------------------------------------------------------------------------------------------
Original Loan Count 4 Numeric 100 Number of loans at time of
securitization
- ------------------------------------------------------------------------------------------------------------------------------------
Ending current period loan count 5 Numeric 99 Number of loans at end of current
period
- ------------------------------------------------------------------------------------------------------------------------------------
Ending current period collateral balance 7 6 Numeric 1000000.00 Aggregate scheduled balance of loans at
end of current period
- ------------------------------------------------------------------------------------------------------------------------------------
1 month Delinquent - number 7 Numeric 1 Number of loans one month delinquent
- ------------------------------------------------------------------------------------------------------------------------------------
1 month Delinquent - scheduled balance 8 Numeric 1000.00 Scheduled principal balance of loans
one month delinquent
- ------------------------------------------------------------------------------------------------------------------------------------
2 months Delinquent - number 9 Numeric 1 Number of loans two months delinquent
- ------------------------------------------------------------------------------------------------------------------------------------
2 months Delinquent - scheduled balance 10 Numeric 1000.00 Scheduled principal balance of loans
two months delinquent
- ------------------------------------------------------------------------------------------------------------------------------------
3 months Delinquent - number 11 Numeric 1 Number of loans three months delinquent
- ------------------------------------------------------------------------------------------------------------------------------------
3 months Delinquent - scheduled balance 12 Numeric 1000.00 Scheduled principal balance of loans
three months delinquent
- ------------------------------------------------------------------------------------------------------------------------------------
Foreclosure - number 13 Numeric 1 Number of loans in foreclosure -
overrides loans in delinquency
- ------------------------------------------------------------------------------------------------------------------------------------
Foreclosure - schedule balance 14 Numeric 1000.00 Scheduled principal balance of loans in
foreclosure - overrides loans in
delinquency
- ------------------------------------------------------------------------------------------------------------------------------------
REO - number 15 Numeric 1 Number of REOs - overrides loans in
delinquency or foreclosure
- ------------------------------------------------------------------------------------------------------------------------------------
REO - scheduled balance 16 Numeric 1000.00 Book value of REOs - overrides loans in
delinquency or foreclosure
- ------------------------------------------------------------------------------------------------------------------------------------
Specially serviced - number 17 Numeric 1 Number of specially serviced loans -
includes loans in delinquency,
foreclosure, REO
- ------------------------------------------------------------------------------------------------------------------------------------
Specially serviced - scheduled balance 18 Numeric 1000.00 Scheduled principal of Specially
Serviced loans
- ------------------------------------------------------------------------------------------------------------------------------------
In Bankruptcy - number 19 Numeric 1 Number of loans in bankruptcy -
included in delinquency aging category
- ------------------------------------------------------------------------------------------------------------------------------------
In Bankruptcy - scheduled balance 20 Numeric 1000.00 Scheduled principal balance of loans in
bankruptcy-included in delinquency
aging category
- ------------------------------------------------------------------------------------------------------------------------------------
Prepaid loans - number 21 Numeric 1 Number of prepayments in full for the
current period
- ------------------------------------------------------------------------------------------------------------------------------------
Prepaid loans - principal 22 Numeric 1000.00 Principal balance of loans prepaid in
full for the current period
- ------------------------------------------------------------------------------------------------------------------------------------
Total unscheduled principal 27&28 23 Numeric 1000.00 Includes prepayments in full, partial
pre-payments, curtailments in the
current period
- ------------------------------------------------------------------------------------------------------------------------------------
Total Penalty for the period 24 Numeric 1000.00 The aggregate prepayment or yield
maintenance penalties on the loans for
the period
- ------------------------------------------------------------------------------------------------------------------------------------
Current realized losses (gains) 47 25 Numeric 1000.00 Realized losses (gain) in the current
period
- ------------------------------------------------------------------------------------------------------------------------------------
Cumulative realized losses 26 Numeric 1000.00 Cumulative realized losses
- ------------------------------------------------------------------------------------------------------------------------------------
Appraisal Reduction Amount 33 27 Numeric 1000.00 Total Current Appraisal Reduction
Allocated
- ------------------------------------------------------------------------------------------------------------------------------------
Cumulative Appraisal Reduction 35 28 Numeric 1000.00 Total Cumulative Appraisal Reduction
Allocated
- ------------------------------------------------------------------------------------------------------------------------------------
Total P&I Advance Outstanding 37 29 Numeric 1000.00 Outstanding P&I Advances At The End Of
The Current Period
====================================================================================================================================
</TABLE>
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "COLLATERAL SUMMARY" FILE
COLLATERAL LEVEL SUMMARY - SUMMARIZES CMSA LOAN PERIODIC UPDATE FILE
<CAPTION>
====================================================================================================================================
PER FORMAT
FIELD NAME REF # TYPE EXAMPLE DESCRIPTION/COMMENTS
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Total T&I Advance Outstanding 38 30 Numeric 1000.00 Outstanding Taxes & Insurance Advances
At The End Of The Current Period
- ------------------------------------------------------------------------------------------------------------------------------------
Other Expense Advance Outstanding 39 31 Numeric 1000.00 Other Outstanding Advances At The End
Of The Current Period
- ------------------------------------------------------------------------------------------------------------------------------------
Reserve Balances 32 Numeric 1000.00 Balance of cash or equivalent reserve
accounts pledged as credit enhancement
- ------------------------------------------------------------------------------------------------------------------------------------
LOC Balances 33 Numeric 1000.00 Balance of letter of credit reserve
accounts pledged as credit enhancement
- ------------------------------------------------------------------------------------------------------------------------------------
Amortization WAM 34 Numeric 333 Weighted average maturity based on
amortization term
- ------------------------------------------------------------------------------------------------------------------------------------
Maturity WAM 35 Numeric 333 Weighted average maturity based on term
to maturity
- ------------------------------------------------------------------------------------------------------------------------------------
Calculated WAC 36 Numeric 0.105 Weighted average coupon used to
calculate gross interest
====================================================================================================================================
</TABLE>
<PAGE>
VIII. CMSA COLLATERAL
SUMMARY FILE
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "BOND LEVEL" FILE
BOND LEVEL ONLY - REFLECTS DISTRIBUTION STATEMENTS
<CAPTION>
====================================================================================================================================
<S> <C>
SPECIFICATIONS DESCRIPTION/COMMENTS
====================================================================================================================================
Character Set ASCII
- ------------------------------------------------------------------------------------------------------------------------------------
Field Delineation Comma
====================================================================================================================================
<CAPTION>
====================================================================================================================================
FORMAT
FIELD NAME # TYPE EXAMPLE DESCRIPTION/COMMENTS
====================================================================================================================================
<S> <C> <C> <C> <C>
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
(Consistent With CMSA Periodic Loan File)
- ------------------------------------------------------------------------------------------------------------------------------------
Distribution Date 2 AN YYYYMMDD Date Payments Made to Certficateholders
- ------------------------------------------------------------------------------------------------------------------------------------
Record Date 3 AN YYYYMMDD Date Class Must Be Held As Of To Be Considered
Holder of Record
- ------------------------------------------------------------------------------------------------------------------------------------
Class Name/Class Id 4 AN A-1 Unique Class Identification Mnemonic
- ------------------------------------------------------------------------------------------------------------------------------------
Cusip 5 AN 999999AA1 Cusip # (Null If No Cusip Exists)
- ------------------------------------------------------------------------------------------------------------------------------------
Original Balance 6 Numeric 1000000 The Class Balance At Inception Of The Issue
- ------------------------------------------------------------------------------------------------------------------------------------
Notional Flag 7 AN Y "Y" For Notional
- ------------------------------------------------------------------------------------------------------------------------------------
Beginning Balance 8 Numeric 100000 The Outstanding Principal Balance Of The Class
At The Beginning Of The Current Period
- ------------------------------------------------------------------------------------------------------------------------------------
Schedule Principal 9 Numeric 1000 The Scheduled Principal Paid
- ------------------------------------------------------------------------------------------------------------------------------------
Unscheduled Principal 10 Numeric 1000 The Unscheduled Principal Paid
- ------------------------------------------------------------------------------------------------------------------------------------
Total Principal Distribution 11 Numeric 1000 Total Principal Payment Made
- ------------------------------------------------------------------------------------------------------------------------------------
Deferred Interest 12 Numeric 1000 Any Interest Added To The Class Balance
Including Negative Amortization
- ------------------------------------------------------------------------------------------------------------------------------------
Realized Loss (Gain) 13 Numeric 1000 The Total Realized Loss of (Gain) Allocated
- ------------------------------------------------------------------------------------------------------------------------------------
Cumulative Realized Losses 14 Numeric 100000 Realized Losses Allocated Cumulative-To-Date
- ------------------------------------------------------------------------------------------------------------------------------------
Ending Balance 15 Numeric 1000 Outstanding Principal Balance Of The Class At
The End Of the Current Period
- ------------------------------------------------------------------------------------------------------------------------------------
Current Index Rate 16 Numeric 0.055 The Current Index Rate Applicable To The
Calculation Of Current Period Remittance
Interest Rate
- ------------------------------------------------------------------------------------------------------------------------------------
Current Remittance Rate/Pass-Through Rate 17 Numeric 0.075 Annualized Interest Rate Applicable To The
Calculation Of Current Period Remittance
Interest
- ------------------------------------------------------------------------------------------------------------------------------------
Accrual Method 18 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360,
4=Actual/Actual, 5=Actual/366
- ------------------------------------------------------------------------------------------------------------------------------------
Current Accrual Days 19 Numeric 30 The Number Of Accrual Days Applicable To The
Calculation Of Current Period Remittance
Interest
- ------------------------------------------------------------------------------------------------------------------------------------
Interest Accrued 20 Numeric 1000 The Amount Of Accrued Interest
- ------------------------------------------------------------------------------------------------------------------------------------
Prepayment Penalty/Premium Allocation 21 Numeric 1000 Total Amount Of Prepayment Penalties Allocated
- ------------------------------------------------------------------------------------------------------------------------------------
Yield Maintenance Allocation 22 Numeric 1000 Total Amount Of Yield Maintenance Penalties
Allocated
- ------------------------------------------------------------------------------------------------------------------------------------
Other Interest Distribution 23 Numeric 1000 Other Specific Additions To Interest
- ------------------------------------------------------------------------------------------------------------------------------------
Prepayment Interest Shortfall 24 Numeric 1000 Total Interest Adjustments For PPIS
- ------------------------------------------------------------------------------------------------------------------------------------
Appraisal Reduction Allocation 25 Numeric 1000 Total Current Appraisal Reduction Allocated
- ------------------------------------------------------------------------------------------------------------------------------------
Other Interest Shortfall 26 Numeric 1000 Total Interest Adjustments Other Than PPIS
====================================================================================================================================
</TABLE>
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "BOND LEVEL" FILE
BOND LEVEL ONLY - REFLECTS DISTRIBUTION STATEMENTS
<CAPTION>
====================================================================================================================================
FORMAT
FIELD NAME # TYPE EXAMPLE DESCRIPTION/COMMENTS
====================================================================================================================================
<S> <C> <C> <C> <C>
Total Interest Distribution 27 Numeric 1000 The Total Interest Payment Made
- ------------------------------------------------------------------------------------------------------------------------------------
Cumulative Appraisal Reduction 28 Numeric 1000 Total Cumulative Appraisal Reduction
Allocated
- ------------------------------------------------------------------------------------------------------------------------------------
Cumulative Prepayment Penalty/Premium Allocation 29 Numeric 1000 Total Amount Of Prepayment Penalties
Allocated To Date
- ------------------------------------------------------------------------------------------------------------------------------------
Cumulative Yield Maintenance Allocation 30 Numeric 1000 Total Amount Of Yield Maintenance
Penalties Allocated To Date
- ------------------------------------------------------------------------------------------------------------------------------------
Beginning Unpaid Interest Balance 31 Numeric 1000 Outstanding Interest Shortfall At The
Beginning Of The Current Period
- ------------------------------------------------------------------------------------------------------------------------------------
Ending Unpaid Interest Balance 32 Numeric 1000 Outstanding Interest Shortfall At The End
Of The Current Period
- ------------------------------------------------------------------------------------------------------------------------------------
DCR - Original Rating 33 AN AAA The Original Rating Of The Class By Duff
& Phelps
- ------------------------------------------------------------------------------------------------------------------------------------
DCR - Most Recent Rating 34 AN AAA The Most Recent Rating Of The Class By
Duff & Phelps
- ------------------------------------------------------------------------------------------------------------------------------------
DCR - Date Transmitted from Rating Agency 35 AN YYYYMMDD The Date On Which The Most Recent Rating
Was Provided To The Trustee By Duff &
Phelps
- ------------------------------------------------------------------------------------------------------------------------------------
Fitch - Original Rating 36 AN AAA The Original Rating Of The Class By Fitch
- ------------------------------------------------------------------------------------------------------------------------------------
Fitch - Most Recent Rating 37 AN AAA The Most Recent Rating Of the Class By
Fitch
- ------------------------------------------------------------------------------------------------------------------------------------
Fitch - Date Transmitted from Rating Agency 38 AN YYYYMMDD The Date On Which the Most Recent Rating
Was Provided To The Trustee By Fitch
- ------------------------------------------------------------------------------------------------------------------------------------
Moody's - Original Rating 39 AN AAA The Original Rating Of The Class By
Moody's
- ------------------------------------------------------------------------------------------------------------------------------------
Moody's - Most Recent Rating 40 AN AAA The Most Recent Rating Of the Class By
Moody's
- ------------------------------------------------------------------------------------------------------------------------------------
Moody's - Date Transmitted from Rating Agency 41 AN YYYYMMDD The Date On Which The Most Recent Rating
Was Provided To The Trustee By Moody's
- ------------------------------------------------------------------------------------------------------------------------------------
Standard & Poors - Original Rating 42 AN AAA The Original Rating Of The Class By
Standard & Poors
- ------------------------------------------------------------------------------------------------------------------------------------
Standard & Poors - Most Recent Rating 43 AN AAA The Most Recent Rating Of The Class By
Standard & Poors
- ------------------------------------------------------------------------------------------------------------------------------------
Standard & Poors - Date Transmitted from Rating Agency 44 AN YYYYMMDD The Date On Which The Most Recent Rating
Was Provided To the Trustee By Standard &
Poors
====================================================================================================================================
</TABLE>
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "COLLATERAL SUMMARY" FILE
COLLATERAL LEVEL SUMMARY - SUMMARIZES CMSA LOAN PERIODIC UPDATE FILE
<CAPTION>
====================================================================================================================================
<S> <C>
SPECIFICATIONS DESCRIPTION/COMMENTS
====================================================================================================================================
Character Set ASCII
- ------------------------------------------------------------------------------------------------------------------------------------
Field Delineation Comma
====================================================================================================================================
<CAPTION>
====================================================================================================================================
PER FORMAT
FIELD NAME REF # TYPE EXAMPLE DESCRIPTION/COMMENTS
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Transaction Id 1 an XXX97001 Unique Issue Identification Mnemonic
- ------------------------------------------------------------------------------------------------------------------------------------
Group ID 2 AN XXX97001 Unique Identification Number Assigned
To Each Loan Group Within An Issue
- ------------------------------------------------------------------------------------------------------------------------------------
Distribution Date 3 AN YYYYMMDD Date Payments Made To Certficateholders
- ------------------------------------------------------------------------------------------------------------------------------------
Original Loan Count 4 Numeric 100 Number of loans at time of
securitization
- ------------------------------------------------------------------------------------------------------------------------------------
Ending current period loan count 5 Numeric 99 Number of loans at end of current
period
- ------------------------------------------------------------------------------------------------------------------------------------
Ending current period collateral balance 7 6 Numeric 1000000.00 Aggregate scheduled balance of loans at
end of current period
- ------------------------------------------------------------------------------------------------------------------------------------
1 month Delinquent - number 7 Numeric 1 Number of loans one month delinquent
- ------------------------------------------------------------------------------------------------------------------------------------
1 month Delinquent - scheduled balance 8 Numeric 1000.00 Scheduled principal balance of loans
one month delinquent
- ------------------------------------------------------------------------------------------------------------------------------------
2 months Delinquent - number 9 Numeric 1 Number of loans two months delinquent
- ------------------------------------------------------------------------------------------------------------------------------------
2 months Delinquent - scheduled balance 10 Numeric 1000.00 Scheduled principal balance of loans
two months delinquent
- ------------------------------------------------------------------------------------------------------------------------------------
3 months Delinquent - number 11 Numeric 1 Number of loans three months delinquent
- ------------------------------------------------------------------------------------------------------------------------------------
3 months Delinquent - scheduled balance 12 Numeric 1000.00 Scheduled principal balance of loans
three months delinquent
- ------------------------------------------------------------------------------------------------------------------------------------
Foreclosure - number 13 Numeric 1 Number of loans in foreclosure -
overrides loans in delinquency
- ------------------------------------------------------------------------------------------------------------------------------------
Foreclosure - schedule balance 14 Numeric 1000.00 Scheduled principal balance of loans in
foreclosure - overrides loans in
delinquency
- ------------------------------------------------------------------------------------------------------------------------------------
REO - number 15 Numeric 1 Number of REOs - overrides loans in
delinquency or foreclosure
- ------------------------------------------------------------------------------------------------------------------------------------
REO - scheduled balance 16 Numeric 1000.00 Book value of REOs - overrides loans in
delinquency or foreclosure
- ------------------------------------------------------------------------------------------------------------------------------------
Specially serviced - number 17 Numeric 1 Number of specially serviced loans -
includes loans in delinquency,
foreclosure, REO
- ------------------------------------------------------------------------------------------------------------------------------------
Specially serviced - scheduled balance 18 Numeric 1000.00 Scheduled principal of Specially
Serviced loans
- ------------------------------------------------------------------------------------------------------------------------------------
In Bankruptcy - number 19 Numeric 1 Number of loans in bankruptcy -
included in delinquency aging category
- ------------------------------------------------------------------------------------------------------------------------------------
In Bankruptcy - scheduled balance 20 Numeric 1000.00 Scheduled principal balance of loans in
bankruptcy-included in delinquency
aging category
- ------------------------------------------------------------------------------------------------------------------------------------
Prepaid loans - number 21 Numeric 1 Number of prepayments in full for the
current period
- ------------------------------------------------------------------------------------------------------------------------------------
Prepaid loans - principal 22 Numeric 1000.00 Principal balance of loans prepaid in
full for the current period
- ------------------------------------------------------------------------------------------------------------------------------------
Total unscheduled principal 27&28 23 Numeric 1000.00 Includes prepayments in full, partial
pre-payments, curtailments in the
current period
- ------------------------------------------------------------------------------------------------------------------------------------
Total Penalty for the period 24 Numeric 1000.00 The aggregate prepayment or yield
maintenance penalties on the loans for
the period
- ------------------------------------------------------------------------------------------------------------------------------------
Current realized losses (gains) 47 25 Numeric 1000.00 Realized losses (gain) in the current
period
- ------------------------------------------------------------------------------------------------------------------------------------
Cumulative realized losses 26 Numeric 1000.00 Cumulative realized losses
- ------------------------------------------------------------------------------------------------------------------------------------
Appraisal Reduction Amount 33 27 Numeric 1000.00 Total Current Appraisal Reduction
Allocated
- ------------------------------------------------------------------------------------------------------------------------------------
Cumulative Appraisal Reduction 35 28 Numeric 1000.00 Total Cumulative Appraisal Reduction
Allocated
- ------------------------------------------------------------------------------------------------------------------------------------
Total P&I Advance Outstanding 37 29 Numeric 1000.00 Outstanding P&I Advances At The End Of
The Current Period
====================================================================================================================================
</TABLE>
<PAGE>
<TABLE>
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "COLLATERAL SUMMARY" FILE
COLLATERAL LEVEL SUMMARY - SUMMARIZES CMSA LOAN PERIODIC UPDATE FILE
<CAPTION>
====================================================================================================================================
PER FORMAT
FIELD NAME REF # TYPE EXAMPLE DESCRIPTION/COMMENTS
====================================================================================================================================
<S> <C> <C> <C> <C> <C>
Total T&I Advance Outstanding 38 30 Numeric 1000.00 Outstanding Taxes & Insurance Advances
At the End of the Current Period
- ------------------------------------------------------------------------------------------------------------------------------------
Other Expense Advance Outstanding 39 31 Numeric 1000.00 Other Outstanding Advances At The End
Of The Current Period
- ------------------------------------------------------------------------------------------------------------------------------------
Reserve Balances 32 Numeric 1000.00 Balance of cash or equivalent reserve
accounts pledged as credit enhancement
- ------------------------------------------------------------------------------------------------------------------------------------
LOC Balances 33 Numeric 1000.00 Balance of letter of credit reserve
accounts pledged as credit enhancement
- ------------------------------------------------------------------------------------------------------------------------------------
Amortization WAM 34 Numeric 333 Weighted average maturity based on
amortization term
- ------------------------------------------------------------------------------------------------------------------------------------
Maturity WAM 35 Numeric 333 Weighted average maturity based on term
to maturity
- ------------------------------------------------------------------------------------------------------------------------------------
Calculated WAC 36 Numeric 0.105 Weighted average coupon used to
calculate gross interest
====================================================================================================================================
</TABLE>
MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of the date of the Pooling and
Servicing Agreement (as defined below) (the "Agreement"), between Merrill Lynch
Mortgage Capital Inc. (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 "MLMCI Mortgage Loans") as
provided herein. The Purchaser intends to deposit the MLMCI Mortgage Loans,
together with the Other Mortgage Loans (as defined below), 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 most of 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"), ORIX Real Estate
Capital Markets, LLC as special servicer (in such capacity, the "Special
Servicer"), and Norwest Bank Minnesota, National Association as trustee (the
"Trustee"). Concurrently with the purchase of the MLMCI Mortgage Loans pursuant
to this Agreement, the Purchaser will also purchase certain multifamily and
commercial mortgage loans (the "Other Mortgage Loans", and collectively with the
MLMCI Mortgage Loans, the "Mortgage Loans") pursuant to a separate mortgage loan
purchase agreement, dated as of the date of the Pooling and Servicing Agreement
between the Purchaser and First Union National Bank. The Other Mortgage Loans
will likewise be deposited into the Trust Fund. 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 MLMCI 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 MLMCI Mortgage Loans delivered to the Purchaser
pursuant to the terms hereof. The MLMCI Mortgage Loans are expected to have an
aggregate principal balance of $[ ] (the "MLMCI 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 MLMCI Balance, together with the aggregate principal balance of
the Other Mortgage Loans as of the Cut-Off Date (after giving effect to any
payments due on or before such date whether or not received), is expected to
equal an aggregate principal balance (the "Initial Pool Balance") of
$776,325,806 (subject to a
1
<PAGE>
variance of plus or minus 5%). The purchase and sale of the MLMCI Mortgage Loans
shall take place on May 11, 2000 or such other date as shall be mutually
acceptable to the parties hereto (the "Closing Date"). The consideration (the
"Aggregate Purchase Price") for the MLMCI Mortgage Loans shall consist of a cash
amount equal to (i) [ ]% of the MLMCI Balance as of the Cut-Off Date, plus (ii)
interest accrued on the MLMCI Balance at the related Net Mortgage Rate for the
period from and including the Cut-Off Date up to but not including the Closing
Date in the amount of $[ ], 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 MLMCI Mortgage Loans.
SECTION 2. Conveyance of MLMCI 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 MLMCI Mortgage Loans identified on the
Mortgage Loan Schedule as of such date, on a servicing released basis, together
with all of the Seller's right, title and interest in and to the proceeds of any
related title, hazard, primary mortgage or other insurance proceeds. 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 MLMCI 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 MLMCI 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 MLMCI 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 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 on its face or by allonge attached thereto
(without recourse, representation or warranty, express or
implied) to the order of Norwest Bank Minnesota, National
Association, as trustee for the
2
<PAGE>
registered holders of First Union National Bank Commercial
Mortgage Pass- Through Certificates, Series 2000-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 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 MLMCI 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 National Bank Commercial Mortgage Pass-Through
Certificates, Series 2000-C1 or in blank;
(v) an original assignment of all unrecorded documents relating to
the MLMCI Mortgage Loan, in favor of Norwest Bank Minnesota,
National Association, as trustee for the registered holders of
First Union National Bank Commercial Mortgage Pass-Through
Certificates, Series 2000-C1 or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where
the terms or provisions of the Mortgage or Mortgage Note have
been consolidated or modified or the Mortgage Loan has been
assumed;
(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;
(viii) any filed copies (with evidence of filing) or other evidence of
filing satisfactory to the Purchaser of any prior UCC Financing
Statements in favor of the originator of such MLMCI 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 and continuation statements in favor of the
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
3
<PAGE>
National Bank Commercial Mortgage Pass-Through Certificates,
Series 2000-C1 or in blank;
(ix) an original or copy of any Ground Lease, any Credit Lease and any
Lease Enhancement Policy, RVI Policy or Guaranty; and
(x) any intercreditor agreement relating to permitted debt of the
Mortgagor.
(d) The Seller shall take all actions necessary or desirable to permit
the Trustee to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement.
(e) All documents and records (except attorney-client privileged
communication and internal credit analysis of the Seller) relating to each MLMCI
Mortgage Loan and in the Seller's possession (the "Additional Mortgage Loan
Documents") that are not required to be delivered to the Trustee shall promptly
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 corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and the Seller has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement by it, and
has the power and authority to execute, deliver and perform this
Agreement and all the transactions contemplated hereby.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming the due
authorization, execution and delivery of this Agreement by each other
party hereto, this Agreement and all of the obligations of the Seller
hereunder are the legal, valid and binding obligations of the Seller,
enforceable against the Seller in accordance with the terms of this
Agreement, 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 enforceability 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
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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 Agreement except as have previously been
obtained, and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to 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 MLMCI Mortgage Loans to the Purchaser as a sale of
the MLMCI 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 MLMCI Mortgage Loans to the Purchaser will constitute
reasonably equivalent value at least equal to the fair market value of
the MLMCI Mortgage Loans. The Seller will be solvent at all relevant
times prior to, and will not be rendered insolvent by, the sale of the
MLMCI Mortgage Loans to the Purchaser. The Seller is not selling the
MLMCI 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 MLMCI Mortgage Loan.
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(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 MLMCI 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 MLMCI 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 provided the Seller receives such notice in a timely manner),
if such Document Defect or Breach shall materially and adversely affect the
value of the related MLMCI 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 MLMCI 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 MLMCI Mortgage Loan not
later than the end of such 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 MLMCI 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 or substitute the related MLMCI 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 MLMCI 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 MLMCI 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 MLMCI Mortgage Loan. Notwithstanding the
foregoing, the delivery of a commitment to issue a policy of lender's title
insurance as described in clause 12 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 permitted repurchase or substitution of one
or more MLMCI Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer
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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 MLMCI Mortgage
Loan or substituted MLMCI 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 MLMCI
Mortgage Loan possessed by it.
(e) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and warranties
are being made for risk allocation purposes. Subject to Section 7 of this
Agreement, this Section 3 provides the sole remedy available to the
Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any Document Defect in a Mortgage File or any Breach of any
representation or warranty set forth in or required to be made pursuant to
Section 3 of this Agreement.
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 MLMCI Mortgage Loans from the Seller and to transfer the MLMCI 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.
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(d) None of the acquisition of the MLMCI Mortgage Loans by the
Purchaser, the transfer of the MLMCI Mortgage Loans to the Trustee, and the
execution, delivery or performance of this Agreement by the Purchaser, results
or will result in the creation or imposition of any lien on any of the
Purchaser's assets or property, or 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.
(e) Under GAAP and for federal income tax purposes, the Purchaser will
report the transfer of the MLMCI Mortgage Loans by the Seller to the Purchaser
as a sale of the MLMCI Mortgage Loans to the Purchaser in exchange for
consideration consisting of a cash amount equal to the Aggregate Purchase Price.
(f) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any court
or by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of this Agreement or any action
taken in connection with the obligations of the Purchaser contemplated herein,
or which would be likely to impair materially the ability of the Purchaser to
perform under the terms of this Agreement.
(g) The Purchaser 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 governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the MLMCI Mortgage Loans (the
"Closing") shall be held at the offices of Mayer, Brown & Platt, Charlotte,
North Carolina 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 MLMCI 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, the Underwriters and their respective counsel in their reasonable
discretion, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof;
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(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.
(f) A letter from the independent accounting firm of KPMG LLP in form
satisfactory to the Purchaser, relating to certain information regarding the
Mortgage Loans as set forth in the Prospectus and a letter from KPMG LLP
regarding certain information regarding the Certificates as set forth in the
Prospectus Supplement.
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 MLMCI Mortgage Loans on the Closing Date.
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
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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 MLMCI Mortgage Loans or omitted or omits to state therein a
material fact necessary in order to make the statements therein relating to the
MLMCI 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 MLMCI Mortgage Loans or omitted or
omits to state therein a material fact necessary in order to make the statements
therein related to the MLMCI 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 State of
Delaware not earlier than sixty (60) days prior to the Closing Date;
(f) A written opinion of counsel for the Seller, reasonably
satisfactory to the Purchaser, its counsel and the 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 Prospectus Supplement,
the Memorandum, 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 Registered
Certificates, 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-Registered Certificates
(the items in (A) and (B) being defined as the "Disclosure Material"), 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 MLMCI
Mortgage
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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 Prospectus Supplement including without limitation Annex
A thereto, the Memorandum, the Diskette, any Computational Materials and ABS
Term Sheets with respect to the Registered Certificates and any items similar to
Computational Materials and ABS Term Sheets forwarded to prospective investors
in the Non-Registered Certificates), (II) any such untrue statement or alleged
untrue statement or omission or alleged omission of a material fact is with
respect to, or arises out of or is based upon an untrue statement or omission of
a material fact with respect to, the information regarding the MLMCI Mortgage
Loans, the related Mortgagors, the related Mortgaged Properties and/or the
Seller set forth (X) in the Prospectus Supplement and the Memorandum under the
headings: "SUMMARY OF PROSPECTUS SUPPLEMENT-THE PARTIES-The Mortgage Loan
Sellers", "SUMMARY OF PROSPECTUS SUPPLEMENT-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 Prospectus
Supplement 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 MLMCI Mortgage Loans, the
related Mortgagors and/or the related Mortgaged Properties set forth in the Data
File and Annex A to the Prospectus Supplement, including without limitation the
aggregation of such information with comparable information relating to the
Other Mortgage Loans in the Trust Fund. This indemnity agreement will be in
addition to any liability which the Seller may otherwise have (the information
described in clauses (I) through (III) above, collectively the "Seller
Information").
(b) For purposes of this Agreement, "Registration Statement" shall
mean such registration statement No. 333-62671 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 April
18, 2000, as supplemented by the prospectus supplement dated April 28, 2000 (the
"Prospectus Supplement") relating to the Registered Certificates, including all
annexes thereto; "Memorandum" shall mean the private placement memorandum dated
April [ ], 2000, relating to the Non-Registered Certificates, including all
exhibits thereto; "Registered Certificates" shall mean the Class A-1, Class A-2,
Class IO, Class B, Class C, Class D, Class E and Class F Certificates;
"Non-Registered Certificates" shall mean the Certificates other than the
Registered Certificates; "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 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
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compact disc attached to each of the Prospectus and the Memorandum; and "Data
File" shall mean the compilation of information and data regarding the MLMCI
Mortgage Loans covered by the Agreed Upon Procedures Letter dated April 28,
2000 and rendered by KPMG (a "hard copy" of which Data File was initialed on
behalf of the Seller and the Purchaser).
(c) The Purchaser shall indemnify and hold harmless the Seller, its
directors, officers, employees and agents, and each person, if any, who controls
the Seller within the meaning of either the 1933 Act or 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) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Disclosure Material, or 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 not misleading in the light of the circumstances under which they were
made, except to the extent that such untrue statement, alleged untrue statement,
omission or alleged omission is based upon the Seller Information, and the
Purchaser shall reimburse each such indemnified party, as incurred, or any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which the Purchaser may otherwise
have.
(d) 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 under this Section 7 (except to the extent
that such omission has prejudiced the indemnifying party in any material
respect) or from any liability which it may have 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
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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
reasonably 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
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).
(e) 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.
(f) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(e) 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(e) 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.
(g) 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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(h) 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 Seller's pro rata portion of the
aggregate of the following amounts (the Seller's pro rata portion to be
determined according to the percentage that the MLMCI Balance represents of the
Initial Pool Balance): (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 together with the legal fees of counsel to S&P; (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
MLMCI 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 MLMCI Mortgage Loans by the Seller to the
Purchaser as provided in Section 2 hereof be, and be construed as, a sale of the
MLMCI Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
MLMCI 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 MLMCI 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 MLMCI 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 MLMCI Mortgage Loans, and all amounts payable to the
holder of the MLMCI 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 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
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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 MLMCI 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 MLMCI 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 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.
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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.
SECTION 18. Accountants' Letters. The parties hereto shall cooperate with KPMG
LLP in making available all information and taking all steps reasonably
necessary to permit such accountants to deliver the letters required by the
Underwriting Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty or other statement
in this Agreement is made with respect to a Person's "knowledge," such statement
refers to such Person's employees or agents who were or are responsible for or
involved with the indicated matter and have actual knowledge of the matter in
question.
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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
MERRILL LYNCH MORTGAGE CAPITAL INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Address for Notices:
100 Church Street, 18th Floor
New York, New York 10080-6518
Attention: Andrea Balkan
Telecopier No.: (212) 652-7552
With a copy to:
Merrill Lynch
100 Vesey Street
World Financial Center
North Tower, 12th Floor
New York, New York 10281
Attention: Michael McGovern
Telecopier No.: (212) 446-0265
PURCHASER
---------
FIRST UNION COMMERCIAL
MORTGAGE SECURITIES, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Address for Notices:
One First Union Center
301 South College Street
Charlotte, North Carolina 28288-0600
Attention: Craig M. Lieberman
Telecopier No.: (704) 374-6435
Telephone No.: (704) 383-7407
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SCHEDULE I
General Mortgage Representations and Warranties
1. 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.
2. 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.
3. Immediately prior to the sale, transfer and assignment to the
Purchaser, the Seller had good title to, and was the sole owner of, each
Mortgage Loan, and the Seller is transferring such Mortgage Loan free and clear
of any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan except as set forth in the related title policy
(the "Title Policy").
4. The proceeds of such Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if any)
and other agreement executed in connection with such Mortgage Loan are legal,
valid and binding obligations of the related Mortgagor (subject to any
non-recourse provisions therein and any state anti-deficiency legislation),
enforceable in accordance with their terms, except with respect to provisions
relating to default interest, yield maintenance charges or prepayment premiums
and except as such enforcement may be limited by bankruptcy, insolvency,
receivorship, reorganization, moratorium, redemption or other laws affecting the
enforcement of creditors' rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law). The related Mortgage Note and Mortgage contain no provision limiting
the right or ability of the Seller to assign, transfer and convey the related
Mortgage Loan to any other Person.
6. As of the date of its origination, there was no valid offset,
defense, counterclaim, abatement or right to rescission with respect to any of
the related Mortgage Notes, Mortgage(s) or other agreements executed in
connection therewith, and, as of the Cut-Off Date, to the 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, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premiums
or yield maintenance charges.
7. Each related assignment of Mortgage and assignment of Assignment of
Leases from the Seller to the Trustee constitutes the legal, valid and binding
assignment from the Seller, except as such enforcement may be limited by
bankruptcy, insolvency, redemption, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting
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creditors' rights generally or by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
8. Each related Mortgage is a valid and enforceable first lien on the
related Mortgaged Property subject only to the following title exceptions (each
such exception, a "Title Exception", and collectively, the "Title Exceptions"):
(a) the lien of current real property taxes, ground rents, water charges, sewer
rents and assessments not yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of public record, none
of which, individually or in the aggregate, materially interferes with the
current use of the Mortgaged Property or the security intended to be provided by
such Mortgage or with the Mortgagor's ability to pay its obligations when they
become due or materially and adversely affects the value of the Mortgaged
Property and (c) the exceptions (general and specific) set forth in such policy
or appearing of record, none of which, individually or in the aggregate,
materially interferes with the current use of the Mortgaged Property or the
security intended to be provided by such Mortgage or with the Mortgagor's
ability to pay its obligations when they become due or materially and adversely
affects the value of the Mortgaged Property.
9. UCC Financing Statements have been filed and/or recorded (or, if
not filed and/or recorded, have been submitted in proper form for filing and
recording), in all public places necessary to perfect a valid security interest
in all items of personal property necessary to operate the Mortgaged Property
owned by a Mortgagor and located on the related Mortgaged Property, to the
extent perfection may be effected pursuant to applicable law by recording or
filing, and the Mortgages, security agreements, chattel Mortgages or equivalent
documents related to and delivered in connection with the related Mortgage Loan
establish and create a valid and enforceable lien and priority security interest
on such items of personalty except as such enforcement may be limited by
bankruptcy, insolvency, receivorship, reorganization, moratorium, redemption,
liquidation or other laws affecting the enforcement of creditor's rights
generally, or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
10. All taxes and governmental assessments which would be a lien on
the Mortgaged Property and that prior to the Cut-Off Date have become delinquent
in respect of each related Mortgaged Property have been paid, or an escrow of
funds in an amount sufficient to cover such payments has been established. For
purposes of this representation and warranty, taxes and assessments and
installments thereof shall not be considered delinquent until the earlier of (a)
the date on which interest and/or penalties would first be payable thereon and
(b) the date on which enforcement action is entitled to be taken by the related
taxing authority.
11. To the Seller's knowledge as of the Cut-Off Date, based solely
upon due diligence customarily performed with the origination of comparable
Mortgage Loans by the Seller, each related Mortgaged Property was free and clear
of any material damage that would affect materially and adversely the value of
such Mortgaged Property as security for the Mortgage Loan and to the Seller's
knowledge as of the Cut-Off Date there was no proceeding pending for the total
or partial condemnation of such Mortgaged Property.
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12. The lien of each related Mortgage as a first priority lien in the
original principal amount of such Mortgage Loan after all advances of principal
(as set forth on the Mortgage Loan Schedule) is insured by an ALTA lender's
title insurance policy (or a binding commitment therefor), or its equivalent as
adopted in the applicable jurisdiction, insuring the Seller, its successors and
assigns, subject only to the Title Exceptions; the Seller or its successors or
assigns is the named insured of such policy; such policy is assignable and will
inure to the benefit of the Trustee as Mortgagee of record; is in full force and
effect upon the consummation of the transactions contemplated by this Agreement;
all premiums thereon have been paid; no claims have been made under such policy
and the Seller has not done anything, by act or omission, and the Seller has no
knowledge of any matter, which would impair or diminish the coverage of such
policy.
13. As of the date of its origination, all insurance coverage 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) equal to the lesser of (i) the
replacement cost of improvements located on such Mortgaged Property, or (ii) the
initial principal balance of the Mortgage Loan, was in full force and effect
with respect to each related Mortgaged Property; and, as of the Cut-Off Date, to
the knowledge of the Seller, all insurance coverage 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; all premiums due and payable through the Closing Date have been paid;
and no notice of termination or cancellation with respect to any such insurance
policy has been received by the Seller; and 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, 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.
14. (A) Other than payments due but not yet 30 days or more
delinquent, to the Seller's knowledge, there is no material default, breach,
violation or event of acceleration existing under the related Mortgage or the
related Mortgage Note, and no event (other than payments due but not yet
delinquent) which, with the passage of time or with notice and the expiration of
any grace or cure period, would constitute a material default, breach, violation
or event of acceleration, provided, however, that this representation and
warranty does not address or otherwise cover any default, breach, violation or
event of acceleration that specifically pertains to any matter otherwise covered
by any other representation and warranty made by the Seller in any of clauses
(10), (15) and (19) of this Schedule I or in any clause of Schedule II, III or
IV, and (B) the Seller has not waived any material default, breach, violation or
event of acceleration under such Mortgage or Mortgage Note, except for a written
waiver contained in the
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related Mortgage File being delivered to the Purchaser, and pursuant to the
terms of the related Mortgage or the related Mortgage Note, no person or party
other than the holder of such Mortgage Note may declare any event of default or
accelerate the related indebtedness under either of such Mortgage or Mortgage
Note.
15. 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.
16. Except with respect to ARD Loans, which provide that the rate at
which interest accrues thereon increases after the Anticipated Repayment Date,
the Mortgage Rate (exclusive of any default interest, late charges or prepayment
premiums) of such Mortgage Loan is a fixed rate.
17. 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.
18. Each Mortgage Loan constitutes a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulations 1.860 G-2(f)(2) that treats a defective obligation as a
qualified mortgage, or any substantially similar successor provision).
Accordingly, such 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.
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19. 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-months
preceding the origination of the related Mortgage Loan, 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). Each Mortgaged Property, other than the Mortgaged Properties relating
to Mortgage Loans Park Plaza Shopping Center, Skipper Palms Shopping Center,
Bosier City, CA., and Cesery Apartments, Pool B, is covered under a Secured
Creditor Impaired Property Policy, generally as and to the extent described
under "Descriptions of the Mortgage Pool -- Assessments of Property Condition --
Environmental Group Insurance Policies".
20. Each related Mortgage and Assignment of Leases contains customary
and enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the Mortgaged Property of
the benefits of the security, including realization by judicial or, if
applicable, non-judicial foreclosure, subject to the effects of bankruptcy or
similar law affecting the right of creditors and the application of principles
of equity.
21. At the time of origination and, to the knowledge of Seller as of
the CutOff Date, no Mortgagor is a debtor in, and no Mortgaged Property is the
subject of, any state or federal bankruptcy or insolvency proceeding.
22. Except for the Mortgage Loans indicated on the Mortgage Loan
Schedule attached hereto as eligible to receive low-income housing tax credits
pursuant to Section 42 of the Internal Revenue Code of 1986, each Mortgage 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 or provide for
negative amortization.
23. Each related Mortgage or loan agreement contains provisions for
the acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without complying with the requirements of the Mortgage or loan
agreement, the related Mortgaged Property, or any controlling interest therein,
is directly transferred or sold, or encumbered in connection with subordinate
financing by a lien or security interest against the related Mortgaged Property,
other than any existing permitted additional debt.
24. 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.
25. 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.
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26. Since origination, no material portion of the related Mortgaged
Property has been released from the lien of the related Mortgage in any manner
which materially and adversely affects the value of the Mortgage Loan or
materially interferes with the security intended to be provided by such
Mortgage, and, except with respect to Mortgage Loans (a) which permit defeasance
by means of substituting for the Mortgaged Property (or, in the case of a
Mortgage Loan secured by multiple Mortgaged Properties, one or more of such
Mortgaged Properties) U.S. Treasury Obligations sufficient to pay the Mortgage
Loans in accordance with their terms, (b) where a release of the portion of the
Mortgaged Property was contemplated at origination and such portion was not
considered material for purposes of underwriting the Mortgage Loan, (c) where
release is conditional upon the satisfaction of certain underwriting and legal
requirements and the payment of a release price that represents adequate
consideration for such Mortgaged Property, or (d) with respect to Mortgage Loans
which permit the related Mortgagor to substitute a replacement property in
compliance with REMIC Provisions, the terms of the related Mortgage do not
provide for release of any portion of the Mortgaged Property from the lien of
the Mortgage except in consideration of payment in full therefor.
27. To the Seller's knowledge, as of the date of origination of such
Mortgage Loan and as of the Cut-Off Date, there are no violations of any
applicable zoning ordinances, building codes and land laws applicable to the
Mortgaged Property or the use and occupancy thereof which would have a material
adverse effect on the value, operation or net operating income of the Mortgaged
Property.
28. None of the improvements which were included for the purposes of
determining the appraised value of the related Mortgaged Property at the time of
the origination of the Mortgage Loan lies outside of the boundaries and building
restriction lines of such property (except Mortgaged Properties which are legal
non-conforming uses), 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) and no improvements on adjoining
properties encroached upon such Mortgaged Property to any material extent.
29. With respect to at least 95% of the MLMCI 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.
30. No advance of funds has been made other than pursuant to the loan
documents, directly or indirectly, by the Seller to the Mortgagor and, to the
Seller's knowledge, no funds have been received from any person other than the
Mortgagor, for or on account of payments due on the Mortgage Note or the
Mortgage, provided, however, rental payments or similar payments made by the
Tenant under the related Credit Lease directly to the Seller (or its loan
servicer or agent) shall not be deemed a breach of this representation.
31. As of the date of origination and, to the Seller's knowledge, as
of the CutOff Date, there was no pending action, suit or proceeding against the
Mortgagor or the related
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Mortgaged Property an adverse outcome of which would materially affect either
such Mortgagor's performance under the related Mortgage Loan documents or the
holders of the Certificates.
32. The Mortgage Rate of such Mortgage Loan complied as of the date of
origination with, or is exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury, except with respect to
any provisions requiring the payment of default interest, late fees, additional
interest, prepayment premiums or yield maintenance charges.
33. To the Seller's knowledge, 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.
34. 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.
35. The improvements located on the Mortgaged Property are either not
located in a federally designated special flood hazard area or the Mortgagor is
required to maintain or the Mortgagee maintains, flood insurance with respect to
such improvements.
36. All escrow deposits and payments required pursuant to the Mortgage
Loan are in the possession, or under the control, of the Seller or its agent and
there are no deficiencies in connection therewith.
37. To the Seller's knowledge, based on the due diligence customarily
performed in the origination of comparable mortgage loans by the Seller as of
the date of origination of the Mortgage Loan, the related 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.
38. The origination (or acquisition, as the case may be), servicing
and collection practices used by the Seller with respect to the Mortgage Loan
have been in all respects legal and have met customary industry standards. To
the extent required by applicable law, the originator of the related Mortgage
Note and each subsequent holder was authorized to transact and do business in
the jurisdiction where the Mortgaged Property is located while each was the
holder.
39. Except for Mortgagors under Ground Lease Loans, the related
Mortgagor (or its affiliate) has title in the fee simple interest in each
related Mortgaged Property.
40. The Mortgage Loan documents for each Mortgage Loan provide that
each Mortgage Loan is non-recourse to the related Mortgagor except that the
related Mortgagor accepts responsibility for fraud and/or other intentional
misrepresentation. Furthermore, the
7
<PAGE>
Mortgage Loan documents for each Mortgage Loan provide that the related
Mortgagor shall be liable to the lender for losses incurred due to the
misapplication or misappropriation of rents collected in advance or received by
the related Mortgagor after the occurrence of an event of default, insurance
proceeds or condemnation awards or any breach of the environmental covenants in
the related Mortgage Loan documents.
41. The Assignment of Leases set forth in the Mortgage or separate
from the related Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and enforceable lien
and security interest in the related Mortgagor's interest in all leases,
subleases, licenses or other agreements pursuant to which any person is entitled
to occupy, use or possess all or any portion of the real property subject to the
related Mortgage.
8
<PAGE>
SCHEDULE II
Ground Lease Representations and Warranties
1. 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.
2. 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 Mortgagee under the leasehold estate and its assigns without the consent of
the lessor thereunder (or, if any such consent is required, it has been obtained
prior to the Closing Date).
3. Such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the Mortgagee and that any such
action without such consent is not binding on the Mortgagee, its successors or
assigns, except if an event of default occurs under the Ground Lease and notice
is provided to the Mortgagee and such default is curable by the Mortgagee, but
remains uncured beyond the applicable cure period.
4. To the 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.
5. The ground lease or ancillary agreement between the lessor and the
lessee requires the lessor to give notice of any default by the lessee to the
Mortgagee. The ground lease or ancillary agreement further provides that no
notice given is effective against the Mortgagee unless a copy has been given to
the Mortgagee in a manner described in the ground lease or ancillary agreement.
6. The ground lease is not subject to any liens or encumbrances
superior to, or of equal priority with, the Mortgage, subject, however, to only
the Title Exceptions or is subject to a subordination, non-disturbance and
attornment agreement to which the mortgagee on the lessor's fee interest in the
Mortgaged Property is subject.
7. 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.
8. Such Ground Lease has an original term (together with any extension
options, whether or not currently exercised, set forth therein all of which can
be exercised by the Mortgagee if the mortgagee acquires the lessee's rights
under the Ground Lease) that extends not less than (x) 20 years beyond the
Stated Maturity Date and (y) beyond the full amortization
9
<PAGE>
period of any related Mortgage Loan that is not an interest-only Mortgage Loan
for its entire term.
9. 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 award (other than
in respect of a total or substantially total loss or taking) 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 repair or restoration progresses, or to the
payment of the outstanding principal balance of the Mortgage Loan, together with
any accrued interest (except in cases where a different allocation would not be
viewed as commercially unreasonable by any institutional investor, taking into
account the relative duration of the ground lease and the related Mortgage and
the ratio of the market value of the related Mortgaged Property to the
outstanding principal balance of such Mortgage Loan).
10. The ground lease does not impose any restrictions on subletting
that would be viewed as commercially unreasonable by a prudent commercial
lender.
11. 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.
10
<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"):
(1) Except with respect to the Mortgage Loan as indicated in
Exhibit III-A hereto, 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").
(2) 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.
(3) 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.
11
<PAGE>
SCHEDULE IV
Credit Lease Loan Representations and Warranties
1. 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.
2. The Mortgagor does not have any material monetary obligations under
the related Credit Lease, and every material 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.
3. The Mortgagor does not have any nonmonetary obligations under the
related Credit Lease, except for the delivery of possession of the leased
property.
4. 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.
5. 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.
6. Based upon the customary due diligence performed by the originator
at origination, each property related to a Credit Lease Loan is one or more
separate tax lots, except properties concerning which adequate funds have been
escrowed to cover taxes due on the entire tax lot or lots.
7. 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 (except to the extent caused by the
act or omission of the Mortgagor or its agents or employees), 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.
8. 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.
12
<PAGE>
9. In connection with Credit Lease Loans with respect to which a
Guaranty exists from the rated parent or affiliate of the tenant, based on legal
opinions and due diligence customarily performed in the origination of
Comparable Mortgage Loans by the Seller, such guaranty is legal, valid and
binding against the guarantor, such guaranty provides that it is a guaranty of
both performance and payment of the financial obligations of the Tenant, and may
not be amended or released without the Mortgagee's consent, and such Guaranty,
on its face, contains no conditions to such payment.
10. Except for the Credit Lease Loans which have residual value
insurance, each Credit Lease Loan fully amortizes over the term of the loan, and
there is no "balloon" payment due under such Credit Lease Loan at maturity.
11. No Tenant under a Credit Lease Loan may exercise any termination
right or offset or set-off right which shall be binding upon the related
Mortgagee without providing prior written notice of same to such Mortgagee.
12. Each Tenant under each Credit Lease Loan is required to make all
rental payments due under the applicable Credit Lease directly to a lock-box
being maintained by or on behalf of the Mortgagee.
13. No material modification or amendment of any Credit Lease Loan
shall be binding upon the related Mortgagee without such Mortgagee's prior
written notice consent to such material modification or amendment, which consent
may not be unreasonably unwithheld.
14. Each property related to a Credit Lease Loan has or will have a
permanent Certificate of Occupancy, and the related Tenant thereunder has
commenced the payment of rent due under the respective Credit Tenant Lease in
accordance with its terms.
15. Each Tenant has delivered a Subordination, Non-disturbance and
Attornment Agreement pursuant to which the respective Tenant has agreed in the
event the related Mortgagee succeeds to the interest of the Mortgagor under the
Credit Lease by reason of foreclosure or acceptance of a deed in lieu of
foreclosure, the Tenant will attorn to and recognize the Mortgagee as its
landlord under the Lease for the remainder of the term of the Credit Lease.
16. To the Seller's knowledge, the property related to each Credit
Lease Loan is not subject to any other lease other than the related Credit Lease
or any ground lease pursuant to which the related Mortgagor has acquired its
interest in the respective property, no person has any possessory interest in,
or right to occupy, the subject property except under and pursuant to any such
Credit Lease or ground lease and the related Tenant under each Credit Lease is
in occupancy of the demised premises.
13
<PAGE>
EXHIBIT A
Mortgage Loan Schedule
MLMCI Mortgage Loans transferred pursuant to this Agreement are set forth on
Exhibit B to the Pooling and Servicing Agreement under the column heading
"Seller" and with the designation "MLMCI Seller".
15
<PAGE>
<TABLE>
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST SERIES 2000-C1
MORTGAGE LOAN SCHEDULE CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS AND MORTGAGED PROPERTIES
MERRILL LYNCH LOANS ONLY
<CAPTION>
CONTROL ZIP
NUMBER PROPERTY NAME ADDRESS CITY STATE CODE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
84 103rd Street Family Center 6733 103rd Street Jacksonville FL 32210
75 1390-1400/1409-1429/2074-2100 Park Street Various Hartford CT 06106
75.1 1390-1400 Park Street 1390-1400 Park Street Hartford CT 06106
75.2 2074-2100 Park Street (aka 340 Prospect Ave.) 2074-2100 Park Street (aka 340 Prospect Ave.) Hartford CT 06106
75.3 1409-1429 Park Street 1409-1429 Park Street Hartford CT 06106
66 222 West 37th Street 222 West 37th Street New York NY 10018
4 BR- Peartree Square 691 Co-op City Blvd Bronx NY 10475
36 Carrboro Plaza Shopping Center 104 West NC Highway 54 Carrboro NC 27510
95 Cesery Apartments- Pool A Various Jacksonville FL 32211
95.1 Monterey Manor Garden 1038 Caliente Drive Jacksonville FL 32211
95.2 Matanzas Apartments 5642 Matanzas Way Jacksonville FL 32211
95.3 Georgetown Apts. 5611 Holly Bell Drive Jacksonville FL 32211
25 Cesery Apartments- Pool B Various Jacksonville FL Various
25.1 Greenbrier Apartments 3031 Tall Pine Lane W. Jacksonville FL 32211
25.2 Forest Park 3206 Justina Road Jacksonville FL 32211
25.3 Colony Apartments 5814 Merrill Road Jacksonville FL 32277
25.4 Sweetbriar I and II 5736 Merrill Road Jacksonville FL 32277
25.5 Villa Capri I and II 3102 Tall Pine Lane Jacksonville FL 32211
8 Covina Town Center AMC Theaters 1414 N. Azusa Avenue Covina CA 91722
34 Eatontown Plaza 50 Route 36 Eatontown NJ 07724
31 Engineering Technology Building 769, 777, and 789 Chicago Road Troy MI 48083
99 Fallbrook Towne Centre 1075-1079 S. Mission Road Fallbrook CA 92028
109 Heilig Meyers- Charlotte 6300 South Blvd Charlotte NC 28217
135 Heilig Meyers- Las Cruses 1405 South Solano Las Cruces NM 88001
117 Heilig Meyers- National City 300 & 340 National City Blvd. National City CA 91950
116 Heilig Meyers- San Diego 2930 El Cajon Blvd San Diego CA 92104
24 Intermedia-Digex Building 2950 Zanker Road San Jose CA 95134
37 LEX- Hampton Technology Center I and II 400 Butler Farm Road Hampton VA 23666
49 LEX- Hampton Technology Center III 421 Butler Farm Road Hampton VA 23666
76 Lossee Road Industrial Park 2710 Losee Road North Las Vegas NV 89030
87 Mariner's Village Apartments 2130 Mayport Road Atlantic Beach FL 32233
9 Marlow Heights & Marlow Plaza 4000-4223 28th Ave & 2900 St. Clair Dr. Temple Hills MD 20748
41 Orangeburg Office 560 Route 303 Orangeburg NY 10962
82 Petsmart- E. Madison 2216 East Springs Drive East Madison WI 53704
33 Riverpark II 1200 River Road Miquon PA 19452
3 Thomson Consumer Electronics 10330 North Meridian Street Indianapolis IN 46290
<CAPTION>
FOR ALL
MONTHLY MONTHLY BALLON
P&I P&I MORTGAGE
CUT-OFF PAYMENTS FOLLOWING PAYMENT ORIGINAL REMAINING LOANS, THE
DATE EXPIRATION OF ANY SCHEDULED TERM TO TERM TO MATURITY REMAINING
CONTROL LOAN APPLICABLE IO FOR MORTGAGE MATURITY MATURITY DATE OR AMORT.
NUMBER BALANCE PERIODS 6/1/2000 RATE OR ARD OR ARD ARD TERM
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
84 2,441,510 20,042 20,042 9.0800% 120 118 03/01/2010 358
75 2,797,397 23,020 23,020 8.7500% 120 119 04/01/2010 299
75.1
75.2
75.3
66 3,397,128 27,357 27,357 9.0000% 120 118 03/01/2010 358
4 22,221,654 178,175 178,175 8.8125% 120 117 02/01/2010 357
36 7,495,372 57,191 57,191 8.4100% 120 119 04/01/2010 359
95 2,245,365 17,658 17,658 8.6000% 120 117 02/01/2010 357
95.1
95.2
95.3
25 9,979,399 78,478 78,478 8.6000% 120 117 02/01/2010 357
25.1
25.2
25.3
25.4
25.5
8 17,379,334 132,975 132,975 8.4400% 120 119 04/01/2010 359
34 7,995,193 61,740 61,740 8.5400% 120 119 04/01/2010 359
31 8,875,539 66,817 66,817 8.1250% 120 116 01/01/2010 356
99 2,033,004 16,943 16,943 9.2500% 120 118 03/01/2010 358
109 1,607,148 12,275 12,275 7.4200% 156 135 08/01/2011 301
135 856,024 6,538 6,538 7.4200% 156 135 08/01/2011 301
117 1,365,680 10,431 10,431 7.4200% 156 135 08/01/2011 301
116 1,434,954 10,960 10,960 7.4200% 156 135 08/01/2011 301
24 10,490,791 83,543 83,543 8.8750% 120 118 03/01/2010 358
37 7,495,237 56,450 56,450 8.2700% 120 119 04/01/2010 359
49 4,597,073 34,591 34,591 8.2600% 120 119 04/01/2010 359
76 2,705,289 21,463 21,463 8.6900% 120 116 01/01/2010 356
87 2,360,865 17,437 17,437 7.8800% 120 110 07/01/2009 350
9 16,069,055 108,631 108,631 6.9770% 99 97 06/01/2008 339
41 5,939,865 45,643 45,643 8.3300% 120 114 11/01/2009 354
82 2,482,818 20,018 20,018 8.5800% 120 97 06/01/2008 337
33 8,717,303 67,526 67,526 8.4300% 120 116 01/01/2010 356
3 24,605,207 190,005 190,005 8.5400% 144 143 04/01/2012 359
<CAPTION>
INTEREST
RATE EFFECTIVE
TOTAL DURING DATE OF
ORIG. REMAIN. IS THE MORTGAGE LOAN MASTER ADMINISTR- HYPER- HYPER
CONTROL AMORT. AMORT. SECURED BY A GROUND SERVICING ATIVE FEE ARD AMORT AMORT
NUMBER TERM TERM LEASE? FEE RATE RATE LOANS PERIOD? PROVISIONS
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
84 360 358 N 0.0250% 0.05385% N NA NA
75 300 299 N 0.0250% 0.05385% N NA NA
75.1
75.2
75.3
66 360 358 N 0.0250% 0.05385% N NA NA
4 360 357 N 0.0250% 0.05385% Y 10.81250% 02/01/2010
36 360 359 N 0.0250% 0.05385% N NA NA
95 360 357 N 0.0250% 0.05385% N NA NA
95.1
95.2
95.3
25 360 357 N 0.0250% 0.05385% N NA NA
25.1
25.2
25.3
25.4
25.5
8 360 359 N 0.0250% 0.05385% N NA NA
34 360 359 N 0.0250% 0.05385% N NA NA
31 360 356 N 0.0250% 0.05385% N NA NA
99 360 358 N 0.0250% 0.05385% N NA NA
109 322 301 N 0.0250% 0.05385% N NA NA
135 322 301 N 0.0250% 0.05385% N NA NA
117 322 301 N 0.0250% 0.05385% N NA NA
116 322 301 N 0.0250% 0.05385% N NA NA
24 360 358 N 0.0250% 0.05385% N NA NA
37 360 359 N 0.0250% 0.05385% N NA NA
49 360 359 N 0.0250% 0.05385% N NA NA
76 360 356 N 0.0250% 0.05385% N NA NA
87 360 350 N 0.0250% 0.05385% N NA NA
9 341 339 N 0.0250% 0.05385% Y 8.97700% 06/01/2008
41 360 354 N 0.0250% 0.05385% N NA NA
82 360 337 N 0.0250% 0.05385% N NA NA
33 360 356 N 0.0250% 0.05385% N NA NA
3 360 359 N 0.0250% 0.05385% Y 10.54000% 04/01/2012
<CAPTION>
IS THE
MORTGAGE IS THE
LOAN MORTGAGE
IS THE INSURED BY CROSS IS THE LOAN A
MORTGAGE CREDIT A LEASE COLLATERALIZED MORTGAGE SEMI-
LOAN AN LEASE ENHANCEMENT AND CROSS LOAN A ANNUAL
CONTROL ACTUAL/360 LOAN LOAN POLICY OR RVI DEFAULTED DEFEASANCE MORTGAGE
NUMBER LOAN SELLER FLAG CTL GUARANTOR POLICY? LOAN FLAG LOAN? LOAN?
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
84 Y ML N Y N
75 Y ML N Y N
75.1 ML
75.2 ML
75.3 ML
66 Y ML N Y N
4 Y ML N Y N
36 Y ML N Y N
95 Y ML N Y N
95.1 ML
95.2 ML
95.3 ML
25 Y ML N Y N
25.1 ML
25.2 ML
25.3 ML
25.4 ML
25.5 ML
8 Y ML N Y N
34 Y ML N Y N
31 Y ML N Y N
99 Y ML N Y N
109 N ML N Y N
135 N ML N Y N
117 N ML N Y N
116 N ML N Y N
24 Y ML N Y N
37 Y ML N Y N
49 Y ML N Y N
76 Y ML N Y N
87 Y ML N Y N
9 Y ML N Y N
41 Y ML N Y N
82 N ML N Y N
33 Y ML N Y N
3 Y ML N Y N
<CAPTION>
IS THE IS THE
MORTGAGE MORTGAGE
LOAN LOAN AN
SECURED BY INTEREST ANNUAL
CONTROL A LETTER OF RESERVE MONTHLY REPLACEMENT ANNUAL TAX INSURANCE
NUMBER CREDIT? LOAN? LOCKBOX RESERVES ESCROW ESCROW ESCROW
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
84 N Y 784.00 3,790.09 396.61
75 N Y 6998.00 12,941.65 1,745.17
75.1
75.2
75.3
66 N Y 822.00 13,492.00 859.00
4 N Y Hard 1747.00 7,103.00 2,767.59
36 N Y 4357.00 8,201.78 829.60
95 N Y 3479.00 1,490.00 0.00
95.1
95.2
95.3
25 N Y 11625.00 9,290.00 0.00
25.1
25.2
25.3
25.4
25.5
8 N Y Hard 1189.00 0.00 0.00
34 N Y 977.00 6,779.00 3,795.00
31 N Y 0.00 0.00 0.00
99 N Y 270.00 0.00 0.00
109 N N Hard 0.00 0.00 0.00
135 N N Hard 0.00 0.00 0.00
117 N N Hard 0.00 0.00 0.00
116 N N Hard 0.00 0.00 0.00
24 N Y Hard 1378.00 8,640.51 1,812.80
37 N Y Hard 839.00 4,694.00 1,285.00
49 N Y Hard 461.00 1,069.00 720.00
76 N Y 860.00 2,720.17 297.84
87 N Y 2500.00 3,175.00 1,500.00
9 N Y Hard 7150.00 18,017.58 3,443.66
41 N Y 1870.00 3,942.48 1,151.00
82 N N Hard 0.00 0.00 0.00
33 N Y Hard 1299.00 0.00 0.00
3 N Y Hard 0.00 0.00 0.00
<CAPTION>
ANNUAL DEP INITIAL INITIAL
CONTROL REPLACEMENT UPFRONT TI/LC REPAIR ENVIRONMENTAL FUTURE TI/LC
NUMBER RESERVE AT CLOSING RESERVES RESERVES ESCROW?
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
84 9,408.00 30,000.00 0.00 0.00 Y - See Footnote 1
75 83,976.00 0.00 85,350.00 51,875.00 NA
75.1 NA
75.2 NA
75.3 NA
66 9,864.00 140,000.00 0.00 0.00 Y - See Footnote 1
4 20,964.00 888,172.00 0.00 0.00 NA
36 52,284.00 160,000.00 390,000.00 0.00 NA
95 41,748.00 0.00 0.00 0.00 NA
95.1 NA
95.2 NA
95.3 NA
25 139,500.00 0.00 0.00 0.00 NA
25.1 NA
25.2 NA
25.3 NA
25.4 NA
25.5 NA
8 14,268.00 150,000.00 0.00 0.00 Y - See Footnote 1
34 11,724.00 0.00 0.00 0.00 NA
31 0.00 361,175.00 94,625.00 0.00 NA
99 3,240.00 35,000.00 0.00 0.00 NA
109 0.00 0.00 0.00 0.00 NA
135 0.00 0.00 0.00 0.00 NA
117 0.00 0.00 0.00 0.00 NA
116 0.00 0.00 0.00 0.00 NA
24 16,536.00 500,000.00 0.00 0.00 NA
37 10,068.00 0.00 0.00 0.00 Y - See Footnote 1
49 5,532.00 0.00 0.00 0.00 Y - See Footnote 1
76 10,320.00 0.00 0.00 0.00 NA
87 30,000.00 0.00 50,000.00 0.00 NA
9 85,800.00 0.00 32,393.62 0.00 NA
41 22,440.00 516,000.00 20,000.00 0.00 NA
82 0.00 0.00 0.00 0.00 NA
33 0.00 0.00 938,500.00 24,744.00 NA
3 0.00 0.00 0.00 0.00 NA
</TABLE>
- ----------
(1) In addition to any such escrows funded at loan closing for potential TI/LC
expenses, these loans require funds to be escrowed during some or all of
the loan term for TI/LC expenses which may be incurred during the loan
term. In certain instances, escrowed funds may be released to borrower upon
satisfaction of certain leasing conditions.
(2) Fee interest subordinate to the leasehold interest (ie fee owner has joined
in the mortgage)
<PAGE>
<TABLE>
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST SERIES 2000-C1
ANNEX A-2 DEBT SERVICE PAYMENT SCHEDULES FOR CERTAIN CREDIT LEASE LOANS
<CAPTION>
Control # 74
Control # 27 Control # 43 Control # 47 Control # 57 Control # 59 Motel 6 525 Control # 80
Giant Motel 6 28 St. Motel 6 69 Motel 6 414 Motel 6 270 Cleveland Motel 6 1105
Fredericksburg Barb Goleta Cocoa Beach Gainesville Pismo Beach Macedonia Pensacola
-------------- ----------- ----------- ----------- ----------- ----------- -----------
Loan Pay
Period Payment ($) Payment ($) Payment ($) Payment ($) Payment ($) Payment ($) Payment ($)
------ ----------- ----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
1 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
2 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
3 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
4 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
5 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
6 73,151.88 478,709.10 440,041.16 336,411.08 321,717.26 240,514.59 217,313.82
7 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
8 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
9 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
10 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
11 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
12 73,151.88 384,325.23 353,281.19 270,083.16 258,286.42 193,093.94 174,467.51
13 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
14 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
15 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
16 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
17 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
18 73,151.88 299,293.99 275,118.39 210,327.76 201,141.03 150,372.26 135,866.90
19 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
20 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
21 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
22 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
23 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
24 73,151.88 276,188.62 253,879.37 194,090.55 185,613.03 138,763.59 125,378.03
25 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
26 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
27 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
28 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
29 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
30 73,151.88 303,043.15 278,564.70 212,962.47 203,660.66 152,255.93 137,568.86
31 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
32 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
33 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
34 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
35 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
36 73,151.88 273,267.40 251,194.10 192,037.67 183,649.82 137,295.90 124,051.92
37 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
38 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
39 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
40 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
41 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
42 73,151.88 301,824.70 277,444.68 212,106.21 202,841.80 151,643.75 137,015.74
43 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
44 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
45 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
46 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
47 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
48 73,151.88 272,730.40 250,700.48 191,660.30 183,288.93 137,026.10 123,808.15
49 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
50 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
51 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
52 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
53 73,151.88 0.00 0.00 0.00 0.00 0.00 0.00
54 77,264.54 311,138.94 286,006.55 218,651.76 209,101.45 156,323.44 141,244.01
55 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
56 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
57 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
58 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
59 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
60 77,264.54 265,624.13 244,168.22 186,666.39 178,513.15 133,455.74 120,582.20
61 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
62 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
63 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
64 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
65 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
66 77,264.54 307,205.36 282,390.71 215,887.45 206,457.88 154,347.12 139,458.33
67 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
68 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
69 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
70 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
71 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
72 77,264.54 272,472.88 250,463.76 191,479.33 183,115.86 136,896.71 123,691.24
73 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
74 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
75 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
76 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
77 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
78 77,264.54 285,780.77 262,696.70 200,831.40 192,059.45 143,582.91 129,732.47
79 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
80 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
81 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
82 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
83 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
84 77,264.54 298,003.40 273,932.04 209,420.80 200,273.69 149,723.84 135,281.02
85 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
86 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
87 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
88 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
89 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
90 77,264.54 239,720.61 220,357.07 168,462.79 161,104.64 120,441.21 108,823.09
91 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
92 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
93 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
94 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
95 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
96 77,264.54 339,845.02 312,393.89 238,824.86 228,393.43 170,746.05 154,275.37
97 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
98 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
99 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
100 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
101 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
102 77,264.54 218,971.66 201,284.12 153,881.53 147,160.27 110,016.45 99,403.93
103 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
104 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
105 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
106 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
107 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
108 77,264.54 298,676.69 274,550.95 209,893.96 200,726.18 150,062.12 135,586.67
109 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
110 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
111 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
112 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
113 77,264.54 0.00 0.00 0.00 0.00 0.00 0.00
114 81,377.20 201,366.79 185,101.30 141,509.78 135,328.89 101,171.36 91,412.07
115 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
116 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
117 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
118 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
119 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
120 81,377.20 269,382.87 247,623.35 189,307.83 181,039.22 135,344.22 122,288.51
121 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
122 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
123 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
124 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
125 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
126 81,377.20 205,032.77 188,471.16 144,086.03 137,792.62 103,013.23 93,076.27
127 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
128 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
129 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
130 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
131 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
132 81,377.20 265,521.46 244,073.85 186,594.24 178,444.15 133,404.16 120,535.59
133 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
134 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
135 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
136 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
137 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
138 81,377.20 209,871.33 192,918.88 147,486.31 141,044.38 105,444.24 95,272.77
139 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
140 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
141 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
142 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
143 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
144 81,377.20 262,241.16 241,058.51 184,289.02 176,239.61 131,756.06 119,046.47
145 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
146 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
147 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
148 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
149 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
150 81,377.20 205,360.41 188,772.33 144,316.28 138,012.81 103,177.85 93,225.00
151 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
152 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
153 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
154 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
155 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
156 81,377.20 267,723.75 246,098.25 188,141.89 179,924.20 134,510.64 121,535.34
157 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
158 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
159 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
160 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
161 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
162 81,377.20 195,019.43 179,266.65 137,049.19 131,063.14 97,982.30 88,530.63
163 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
164 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
165 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
166 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
167 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
168 81,377.20 277,712.72 255,280.35 195,161.61 186,637.31 139,529.33 126,069.91
169 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
170 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
171 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
172 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
173 81,377.20 0.00 0.00 0.00 0.00 0.00 0.00
174 85,489.86 186,790.49 171,702.41 131,266.34 125,532.87 93,847.89 84,795.04
175 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
176 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
177 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
178 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
179 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
180 85,489.86 268,425.45 246,743.27 188,635.01 180,395.78 134,863.19 121,853.88
181 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
182 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
183 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
184 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
185 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
186 85,489.86 283,658.81 260,746.14 199,340.19 190,633.38 142,516.78 128,769.18
187 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
188 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
189 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
190 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
191 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
192 85,489.86 163,225.38 150,040.78 114,706.04 109,695.89 82,008.23 74,097.47
193 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
194 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
195 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
196 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
197 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
198 85,489.86 430,517.65 395,742.40 302,544.72 289,330.12 216,302.08 195,436.93
199 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
200 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
201 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
202 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
203 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
204 85,489.86 73,315.89 67,393.77 51,522.48 49,272.07 36,835.61 33,282.34
205 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
206 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
207 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
208 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
209 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
210 85,489.86 235,680.33 216,643.15 165,623.50 158,389.37 118,411.28 106,988.97
211 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
212 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
213 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
214 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
215 85,489.86 0.00 0.00 0.00 0.00 0.00 0.00
216 85,489.86 1,931,778.51 1,775,738.24 1,357,550.33 1,298,255.02 970,570.46 876,946.30
217 85,489.86
218 85,489.86
219 85,489.86
220 85,489.86
221 85,489.86
222 85,489.86
223 85,489.86
224 85,489.86
225 85,489.86
226 85,489.86
227 85,489.86
228 85,489.86
229 85,489.86
230 85,489.86
231 85,489.86
232 85,489.86
233 85,489.86
234 89,602.53
235 89,602.53
236 89,602.53
237 89,602.53
238 89,602.53
239 89,602.53
240 89,602.53
241 89,602.53
242 89,602.53
243 89,602.53
244 89,602.53
245 89,602.53
246 89,602.53
247 89,602.53
248 89,602.53
249 89,602.53
250 89,602.53
251 89,602.53
252 89,602.53
253 89,602.53
254 89,602.53
255 89,602.53
256 89,602.53
257 89,602.53
258 89,602.53
259 89,602.53
260 89,602.53
261 89,602.53
262 89,602.53
263 89,602.53
264 89,602.53
265 89,602.53
266 89,602.53
267 89,602.53
268 89,602.53
269 89,602.53
270 89,602.53
271 89,602.53
272 89,602.53
273 89,602.53
274 89,602.53
275 89,602.53
276 89,602.53
277 89,602.53
278 89,602.53
279 89,602.53
280 89,602.53
281 89,602.53
282 89,602.53
283 89,602.53
284 89,602.53
285 89,602.53
286 89,602.53
287 89,602.53
288 89,602.53
289 89,602.53
290 89,602.53
291 89,602.53
292 89,602.53
293 89,602.53
294 93,715.19
295 93,715.19
296 93,715.19
297 93,715.19
298 93,715.19
299 93,715.19
300 93,715.19
</TABLE>
MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of the date of the Pooling and
Servicing Agreement (as defined below) (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 "FUNB Mortgage Loans") as
provided herein. The Purchaser intends to deposit the FUNB Mortgage Loans,
together with the Other Mortgage Loans (as defined below), 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 most of 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"), ORIX Real Estate
Capital Markets, LLC as special servicer (in such capacity, the "Special
Servicer"), and Norwest Bank Minnesota, National Association as trustee (the
"Trustee"). Concurrently with the purchase of the FUNB Mortgage Loans pursuant
to this Agreement, the Purchaser will also purchase certain multifamily and
commercial mortgage loans (the "Other Mortgage Loans", and collectively with the
FUNB Mortgage Loans, the "Mortgage Loans") pursuant to a separate mortgage loan
purchase agreement, dated as of the date of the Pooling and Servicing Agreement
between the Purchaser and Merrill Lynch Mortgage Capital Inc. The Other Mortgage
Loans will likewise be deposited into the Trust Fund. 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 FUNB 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 FUNB Mortgage Loans delivered to the Purchaser
pursuant to the terms hereof. The FUNB Mortgage Loans are expected to have an
aggregate principal balance of $ (the "FUNB 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 FUNB Balance, together with the aggregate principal balance of the
Other Mortgage Loans as of the Cut-Off Date (after giving effect to any payments
due on or before such date whether or not received), is expected to equal an
aggregate principal balance (the "Initial Pool Balance") of $776,325,806
(subject to a
1
<PAGE>
variance of plus or minus 5%). The purchase and sale of the FUNB Mortgage Loans
shall take place on May 11, 2000 or such other date as shall be mutually
acceptable to the parties hereto (the "Closing Date"). The consideration (the
"Aggregate Purchase Price") for the FUNB Mortgage Loans shall consist of a cash
amount equal to (i) [ ]% of the FUNB Balance as of the Cut-Off Date, plus (ii)
interest accrued on the FUNB Balance at the related Net Mortgage Rate for the
period from and including the Cut-Off Date up to but not including the Closing
Date in the amount of $[ ], 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 FUNB Mortgage Loans.
SECTION 2. Conveyance of FUNB 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 FUNB Mortgage Loans identified on the
Mortgage Loan Schedule as of such date, on a servicing released basis, together
with all of the Seller's right, title and interest in and to the proceeds of any
related title, hazard, primary mortgage or other insurance proceeds. 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 FUNB 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 FUNB 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 FUNB 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 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 on its face or by allonge attached thereto
(without recourse, representation or warranty, express or
implied) to the order of Norwest Bank Minnesota, National
Association, as trustee for the
2
<PAGE>
registered holders of First Union National Bank Commercial
Mortgage Pass- Through Certificates, Series 2000-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 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 FUNB 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
National Bank Commercial Mortgage Pass-Through Certificates,
Series 2000-C1 or in blank;
(v) an original assignment of all unrecorded documents relating to
the FUNB Mortgage Loan, in favor of Norwest Bank Minnesota,
National Association, as trustee for the registered holders of
First Union National Bank Commercial Mortgage Pass-Through
Certificates, Series 2000-C1 or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where
the terms or provisions of the Mortgage or Mortgage Note have
been consolidated or modified or the Mortgage Loan has been
assumed;
(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;
(viii) any filed copies (with evidence of filing) or other evidence of
filing satisfactory to the Purchaser of any prior UCC Financing
Statements in favor of the originator of such FUNB 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 and continuation statements in favor of the
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
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National Bank Commercial Mortgage Pass-Through Certificates,
Series 2000-C1 or in blank;
(ix) an original or copy of any Ground Lease, any Credit Lease and any
Lease Enhancement Policy, RVI Policy or Guaranty; and
(x) any intercreditor agreement relating to permitted debt of the
Mortgagor.
(d) The Seller shall take all actions necessary or desirable to permit
the Trustee to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement.
(e) All documents and records (except attorney-client privileged
communication and internal credit analysis of the Seller) relating to each FUNB
Mortgage Loan and in the Seller's possession (the "Additional Mortgage Loan
Documents") that are not required to be delivered to the Trustee shall promptly
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 organized and validly
existing and in good standing under the banking laws of the United States
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
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
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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
Agreement except as have previously been obtained, and no bulk sale law
applies to such transactions.
(vii) No litigation is pending or, to 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
FUNB Mortgage Loans to the Purchaser as a sale of the FUNB 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 FUNB Mortgage Loans to the Purchaser will
constitute reasonably equivalent value at least equal to the fair market
value of the FUNB Mortgage Loans. The Seller will be solvent at all
relevant times prior to, and will not be rendered insolvent by, the sale of
the FUNB Mortgage Loans to the Purchaser. The Seller is not selling the
FUNB 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 FUNB Mortgage Loan.
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(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 FUNB 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 FUNB 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 provided the Seller receives such notice in a timely manner),
if such Document Defect or Breach shall materially and adversely affect the
value of the related FUNB 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 FUNB 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 FUNB Mortgage Loan not
later than the end of such 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 FUNB 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 or substitute the related FUNB 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 FUNB 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 FUNB 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 FUNB Mortgage Loan. Notwithstanding the foregoing, the
delivery of a commitment to issue a policy of lender's title insurance as
described in clause 12 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 permitted repurchase or substitution of one
or more FUNB Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer
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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 FUNB Mortgage
Loan or substituted FUNB 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 FUNB
Mortgage Loan possessed by it.
(e) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and warranties
are being made for risk allocation purposes. Subject to Section 7 of this
Agreement, this Section 3 provides the sole remedy available to the
Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any Document Defect in a Mortgage File or any Breach of any
representation or warranty set forth in or required to be made pursuant to
Section 3 of this Agreement.
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 FUNB Mortgage Loans from the Seller and to transfer the FUNB 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.
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(d) None of the acquisition of the FUNB Mortgage Loans by the
Purchaser, the transfer of the FUNB Mortgage Loans to the Trustee, and the
execution, delivery or performance of this Agreement by the Purchaser, results
or will result in the creation or imposition of any lien on any of the
Purchaser's assets or property, or 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.
(e) Under GAAP and for federal income tax purposes, the Purchaser will
report the transfer of the FUNB Mortgage Loans by the Seller to the Purchaser as
a sale of the FUNB Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the Aggregate Purchase Price.
(f) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any court
or by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of this Agreement or any action
taken in connection with the obligations of the Purchaser contemplated herein,
or which would be likely to impair materially the ability of the Purchaser to
perform under the terms of this Agreement.
(g) The Purchaser 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 governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the FUNB Mortgage Loans (the
"Closing") shall be held at the offices of Mayer, Brown & Platt, Charlotte,
North Carolina 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 FUNB 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, the Underwriters and their respective counsel in their reasonable
discretion, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof;
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(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.
(f) A letter from the independent accounting firm of KPMG LLP in form
satisfactory to the Purchaser, relating to certain information regarding the
Mortgage Loans as set forth in the Prospectus and a letter from KPMG LLP
regarding certain information regarding the Certificates as set forth in the
Prospectus Supplement.
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 FUNB Mortgage Loans on the Closing Date.
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
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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 FUNB Mortgage Loans or omitted or omits to state therein a
material fact necessary in order to make the statements therein relating to the
FUNB 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 FUNB Mortgage Loans or omitted or
omits to state therein a material fact necessary in order to make the statements
therein related to the FUNB 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 State of
Delaware not earlier than sixty (60) days prior to the Closing Date;
(f) A written opinion of counsel for the Seller, reasonably
satisfactory to the Purchaser, its counsel and the 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 Prospectus Supplement,
the Memorandum, 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 Registered
Certificates, 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-Registered Certificates
(the items in (A) and (B) being defined as the "Disclosure Material"), 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 FUNB
Mortgage
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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 Prospectus Supplement including without limitation Annex
A thereto, the Memorandum, the Diskette, any Computational Materials and ABS
Term Sheets with respect to the Registered Certificates and any items similar to
Computational Materials and ABS Term Sheets forwarded to prospective investors
in the Non-Registered Certificates), (II) any such untrue statement or alleged
untrue statement or omission or alleged omission of a material fact is with
respect to, or arises out of or is based upon an untrue statement or omission of
a material fact with respect to, the information regarding the FUNB Mortgage
Loans, the related Mortgagors, the related Mortgaged Properties and/or the
Seller set forth (X) in the Prospectus Supplement and the Memorandum under the
headings: "SUMMARY OF PROSPECTUS SUPPLEMENT-THE PARTIES-The Mortgage Loan
Sellers", "SUMMARY OF PROSPECTUS SUPPLEMENT-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 Prospectus
Supplement 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 FUNB Mortgage Loans, the
related Mortgagors and/or the related Mortgaged Properties set forth in the Data
File and Annex A to the Prospectus Supplement, including without limitation the
aggregation of such information with comparable information relating to the
Other Mortgage Loans in the Trust Fund. This indemnity agreement will be in
addition to any liability which the Seller may otherwise have (the information
described in clauses (I) through (III) above, collectively the "Seller
Information").
(b) For purposes of this Agreement, "Registration Statement" shall
mean such registration statement No. 333-62671 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 April
18, 2000, as supplemented by the prospectus supplement dated April 28, 2000 (the
"Prospectus Supplement") relating to the Registered Certificates, including all
annexes thereto; "Memorandum" shall mean the private placement memorandum dated
April 28, 2000 relating to the Non-Registered Certificates, including all
exhibits thereto; "Registered Certificates" shall mean the Class A-1, Class A-2,
Class IO, Class B, Class C, Class D, Class E and Class F Certificates;
"Non-Registered Certificates" shall mean the Certificates other than the
Registered Certificates; "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 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
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compact disc attached to each of the Prospectus and the Memorandum; and "Data
File" shall mean the compilation of information and data regarding the FUNB
Mortgage Loans covered by the Agreed Upon Procedures Letter dated April 28,
2000 and rendered by KPMG (a "hard copy" of which Data File was initialed on
behalf of the Seller and the Purchaser).
(c) The Purchaser shall indemnify and hold harmless the Seller, its
directors, officers, employees and agents, and each person, if any, who controls
the Seller within the meaning of either the 1933 Act or 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) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Disclosure Material, or 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 not misleading in the light of the circumstances under which they were
made, except to the extent that such untrue statement, alleged untrue statement,
omission or alleged omission is based upon the Seller Information, and the
Purchaser shall reimburse each such indemnified party, as incurred, or any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which the Purchaser may otherwise
have.
(d) 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 under this Section 7 (except to the extent
that such omission has prejudiced the indemnifying party in any material
respect) or from any liability which it may have 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
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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
reasonably 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
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).
(e) 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.
(f) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(e) 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(e) 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.
(g) 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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(h) 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 Seller's pro rata portion of the
aggregate of the following amounts (the Seller's pro rata portion to be
determined according to the percentage that the FUNB Balance represents of the
Initial Pool Balance): (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 together with the legal fees of counsel to S&P; (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
FUNB 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 FUNB Mortgage Loans by the Seller to the
Purchaser as provided in Section 2 hereof be, and be construed as, a sale of the
FUNB Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
FUNB 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 FUNB 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 FUNB 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 FUNB Mortgage Loans, and all amounts payable to the
holder of the FUNB 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 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
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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 FUNB 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 FUNB 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 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.
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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.
SECTION 18. Accountants' Letters. The parties hereto shall cooperate with KPMG
LLP in making available all information and taking all steps reasonably
necessary to permit such accountants to deliver the letters required by the
Underwriting Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty or other statement
in this Agreement is made with respect to a Person's "knowledge," such statement
refers to such Person's employees or agents who were or are responsible for or
involved with the indicated matter and have actual knowledge of the matter in
question.
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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:
----------------------------------
Name:
Title:
Address for Notices:
One First Union Center
301 South College Street
Charlotte, North Carolina 28288-0600
Attention: Craig M. Lieberman
Telecopier No.: (704) 374-6435
Telephone No.: (704) 383-7407
PURCHASER
FIRST UNION COMMERCIAL
MORTGAGE SECURITIES, INC.
By:
----------------------------------
Name:
Title:
Address for Notices:
One First Union Center
301 South College Street
Charlotte, North Carolina 28288-0600
Attention: Craig M. Lieberman
Telecopier No.: (704) 374-6435
Telephone No.: (704) 383-7407
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SCHEDULE I
General Mortgage Representations and Warranties
1. 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.
2. 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.
3. Immediately prior to the sale, transfer and assignment to the
Purchaser, the Seller had good title to, and was the sole owner of, each
Mortgage Loan, and the Seller is transferring such Mortgage Loan free and clear
of any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan except as set forth in the related title policy
(the "Title Policy").
4. The proceeds of such Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if any)
and other agreement executed in connection with such Mortgage Loan are legal,
valid and binding obligations of the related Mortgagor (subject to any
non-recourse provisions therein and any state anti-deficiency legislation),
enforceable in accordance with their terms, except with respect to provisions
relating to default interest, yield maintenance charges or prepayment premiums
and except as such enforcement may be limited by bankruptcy, insolvency,
receivorship, reorganization, moratorium, redemption or other laws affecting the
enforcement of creditors' rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law). The related Mortgage Note and Mortgage contain no provision limiting
the right or ability of the Seller to assign, transfer and convey the related
Mortgage Loan to any other Person.
6. As of the date of its origination, there was no valid offset,
defense, counterclaim, abatement or right to rescission with respect to any of
the related Mortgage Notes, Mortgage(s) or other agreements executed in
connection therewith, and, as of the Cut-Off Date, to the 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, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premiums
or yield maintenance charges.
7. Each related assignment of Mortgage and assignment of Assignment of
Leases from the Seller to the Trustee constitutes the legal, valid and binding
assignment from the Seller, except as such enforcement may be limited by
bankruptcy, insolvency, redemption, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting
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creditors' rights generally or by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
8. Each related Mortgage is a valid and enforceable first lien on the
related Mortgaged Property subject only to the following title exceptions (each
such exception, a "Title Exception", and collectively, the "Title Exceptions"):
(a) the lien of current real property taxes, ground rents, water charges, sewer
rents and assessments not yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of public record, none
of which, individually or in the aggregate, materially interferes with the
current use of the Mortgaged Property or the security intended to be provided by
such Mortgage or with the Mortgagor's ability to pay its obligations when they
become due or materially and adversely affects the value of the Mortgaged
Property and (c) the exceptions (general and specific) set forth in such policy
or appearing of record, none of which, individually or in the aggregate,
materially interferes with the current use of the Mortgaged Property or the
security intended to be provided by such Mortgage or with the Mortgagor's
ability to pay its obligations when they become due or materially and adversely
affects the value of the Mortgaged Property.
9. UCC Financing Statements have been filed and/or recorded (or, if
not filed and/or recorded, have been submitted in proper form for filing and
recording), in all public places necessary to perfect a valid security interest
in all items of personal property necessary to operate the Mortgaged Property
owned by a Mortgagor and located on the related Mortgaged Property, to the
extent perfection may be effected pursuant to applicable law by recording or
filing, and the Mortgages, security agreements, chattel Mortgages or equivalent
documents related to and delivered in connection with the related Mortgage Loan
establish and create a valid and enforceable lien and priority security interest
on such items of personalty except as such enforcement may be limited by
bankruptcy, insolvency, receivorship, reorganization, moratorium, redemption,
liquidation or other laws affecting the enforcement of creditor's rights
generally, or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
10. All taxes and governmental assessments which would be a lien on
the Mortgaged Property and that prior to the Cut-Off Date have become delinquent
in respect of each related Mortgaged Property have been paid, or an escrow of
funds in an amount sufficient to cover such payments has been established. For
purposes of this representation and warranty, taxes and assessments and
installments thereof shall not be considered delinquent until the earlier of (a)
the date on which interest and/or penalties would first be payable thereon and
(b) the date on which enforcement action is entitled to be taken by the related
taxing authority.
11. To the Seller's knowledge as of the Cut-Off Date, based solely
upon due diligence customarily performed with the origination of comparable
Mortgage Loans by the Seller, each related Mortgaged Property was free and clear
of any material damage that would affect materially and adversely the value of
such Mortgaged Property as security for the Mortgage Loan and to the Seller's
knowledge as of the Cut-Off Date there was no proceeding pending for the total
or partial condemnation of such Mortgaged Property.
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12. The lien of each related Mortgage as a first priority lien in the
original principal amount of such Mortgage Loan after all advances of principal
(as set forth on the Mortgage Loan Schedule) is insured by an ALTA lender's
title insurance policy (or a binding commitment therefor), or its equivalent as
adopted in the applicable jurisdiction, insuring the Seller, its successors and
assigns, subject only to the Title Exceptions; the Seller or its successors or
assigns is the named insured of such policy; such policy is assignable and will
inure to the benefit of the Trustee as Mortgagee of record; is in full force and
effect upon the consummation of the transactions contemplated by this Agreement;
all premiums thereon have been paid; no claims have been made under such policy
and the Seller has not done anything, by act or omission, and the Seller has no
knowledge of any matter, which would impair or diminish the coverage of such
policy.
13. As of the date of its origination, all insurance coverage 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) equal to the lesser of (i) the
replacement cost of improvements located on such Mortgaged Property, or (ii) the
initial principal balance of the Mortgage Loan, was in full force and effect
with respect to each related Mortgaged Property; and, as of the Cut-Off Date, to
the knowledge of the Seller, all insurance coverage 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; all premiums due and payable through the Closing Date have been paid;
and no notice of termination or cancellation with respect to any such insurance
policy has been received by the Seller; and 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, 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.
14. (A) Other than payments due but not yet 30 days or more
delinquent, to the Seller's knowledge, there is no material default, breach,
violation or event of acceleration existing under the related Mortgage or the
related Mortgage Note, and no event (other than payments due but not yet
delinquent) which, with the passage of time or with notice and the expiration of
any grace or cure period, would constitute a material default, breach, violation
or event of acceleration, provided, however, that this representation and
warranty does not address or otherwise cover any default, breach, violation or
event of acceleration that specifically pertains to any matter otherwise covered
by any other representation and warranty made by the Seller in any of clauses
(10), (15) and (19) of this Schedule I or in any clause of Schedule II, III or
IV, and (B) the Seller has not waived any material default, breach, violation or
event of
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acceleration under such Mortgage or Mortgage Note, except for a written waiver
contained in the related Mortgage File being delivered to the Purchaser, and
pursuant to the terms of the related Mortgage or the related Mortgage Note, no
person or party other than the holder of such Mortgage Note may declare any
event of default or accelerate the related indebtedness under either of such
Mortgage or Mortgage Note.
15. 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.
16. Except with respect to ARD Loans, which provide that the rate at
which interest accrues thereon increases after the Anticipated Repayment Date,
the Mortgage Rate (exclusive of any default interest, late charges or prepayment
premiums) of such Mortgage Loan is a fixed rate.
17. 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.
18. Each Mortgage Loan constitutes a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulations 1.860 G-2(f)(2) that treats a defective obligation as a
qualified mortgage, or any substantially similar successor provision).
Accordingly, such 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.
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19. 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-months
preceding the origination of the related Mortgage Loan, 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). Each Mortgaged Property, other than the Mortgaged Properties relating
to Mortgage Loans Park Plaza Shopping Center, Skipper Palms Shopping Center,
Bosier City, CA., and Cesery Apartments, Pool B, is covered under a Secured
Creditor Imapired Property Policy, generally as and to the extent described
under "Description of the Mortgage Pool -- Assessments of Property Condition --
Environmental Group Insurance Policies".
20. Each related Mortgage and Assignment of Leases contains customary
and enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the Mortgaged Property of
the benefits of the security, including realization by judicial or, if
applicable, non-judicial foreclosure, subject to the effects of bankruptcy or
similar law affecting the right of creditors and the application of principles
of equity.
21. At the time of origination and, to the knowledge of Seller as of
the CutOff Date, no Mortgagor is a debtor in, and no Mortgaged Property is the
subject of, any state or federal bankruptcy or insolvency proceeding.
22. Except for the Mortgage Loans indicated on the Mortgage Loan
Schedule attached hereto as eligible to receive low-income housing tax credits
pursuant to Section 42 of the Internal Revenue Code of 1986, each Mortgage 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 or provide for
negative amortization.
23. Each related Mortgage or loan agreement contains provisions for
the acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without complying with the requirements of the Mortgage or loan
agreement, the related Mortgaged Property, or any controlling interest therein,
is directly transferred or sold, or encumbered in connection with subordinate
financing by a lien or security interest against the related Mortgaged Property,
other than any existing permitted additional debt.
24. 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.
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25. 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.
26. Since origination, no material portion of the related Mortgaged
Property has been released from the lien of the related Mortgage in any manner
which materially and adversely affects the value of the Mortgage Loan or
materially interferes with the security intended to be provided by such
Mortgage, and, except with respect to Mortgage Loans (a) which permit defeasance
by means of substituting for the Mortgaged Property (or, in the case of a
Mortgage Loan secured by multiple Mortgaged Properties, one or more of such
Mortgaged Properties) U.S. Treasury Obligations sufficient to pay the Mortgage
Loans in accordance with their terms, (b) where a release of the portion of the
Mortgaged Property was contemplated at origination and such portion was not
considered material for purposes of underwriting the Mortgage Loan, (c) where
release is conditional upon the satisfaction of certain underwriting and legal
requirements and the payment of a release price that represents adequate
consideration for such Mortgaged Property, or (d) with respect to Mortgage Loans
which permit the related Mortgagor to substitute a replacement property in
compliance with REMIC Provisions, the terms of the related Mortgage do not
provide for release of any portion of the Mortgaged Property from the lien of
the Mortgage except in consideration of payment in full therefor.
27. To the Seller's knowledge, as of the date of origination of such
Mortgage Loan and as of the Cut-Off Date, there are no violations of any
applicable zoning ordinances, building codes and land laws applicable to the
Mortgaged Property or the use and occupancy thereof which would have a material
adverse effect on the value, operation or net operating income of the Mortgaged
Property.
28. None of the improvements which were included for the purposes of
determining the appraised value of the related Mortgaged Property at the time of
the origination of the Mortgage Loan lies outside of the boundaries and building
restriction lines of such property (except Mortgaged Properties which are legal
non-conforming uses), 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) and no improvements on adjoining
properties encroached upon such Mortgaged Property to any material extent.
29. With respect to at least 95% of the FUNB 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.
30. No advance of funds has been made other than pursuant to the loan
documents, directly or indirectly, by the Seller to the Mortgagor and, to the
Seller's knowledge, no funds have been received from any person other than the
Mortgagor, for or on account of payments due on the Mortgage Note or the
Mortgage, provided, however, rental payments or
6
<PAGE>
similar payments made by the Tenant under the related Credit Lease directly to
the Seller (or its loan servicer or agent) shall not be deemed a breach of this
representation.
31. As of the date of origination and, to the Seller's knowledge, as
of the CutOff Date, there was no pending action, suit or proceeding against the
Mortgagor or the related Mortgaged Property an adverse outcome of which would
materially affect either such Mortgagor's performance under the related Mortgage
Loan documents or the holders of the Certificates.
32. The Mortgage Rate of such Mortgage Loan complied as of the date of
origination with, or is exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury, except with respect to
any provisions requiring the payment of default interest, late fees, additional
interest, prepayment premiums or yield maintenance charges.
33. To the Seller's knowledge, 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.
34. 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.
35. The improvements located on the Mortgaged Property are either not
located in a federally designated special flood hazard area or the Mortgagor is
required to maintain or the Mortgagee maintains, flood insurance with respect to
such improvements.
36. All escrow deposits and payments required pursuant to the Mortgage
Loan are in the possession, or under the control, of the Seller or its agent and
there are no deficiencies in connection therewith.
37. To the Seller's knowledge, based on the due diligence customarily
performed in the origination of comparable mortgage loans by the Seller as of
the date of origination of the Mortgage Loan, the related 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.
38. The origination (or acquisition, as the case may be), servicing
and collection practices used by the Seller with respect to the Mortgage Loan
have been in all respects legal and have met customary industry standards. To
the extent required by applicable law, the originator of the related Mortgage
Note and each subsequent holder was authorized to transact and do business in
the jurisdiction where the Mortgaged Property is located while each was the
holder.
7
<PAGE>
39. Except for Mortgagors under Ground Lease Loans, the related
Mortgagor (or its affiliate) has title in the fee simple interest in each
related Mortgaged Property.
40. The Mortgage Loan documents for each Mortgage Loan provide that
each Mortgage Loan is non-recourse to the related Mortgagor except that the
related Mortgagor accepts responsibility for fraud and/or other intentional
misrepresentation. Furthermore, the Mortgage Loan documents for each Mortgage
Loan provide that the related Mortgagor shall be liable to the lender for losses
incurred due to the misapplication or misappropriation of rents collected in
advance or received by the related Mortgagor after the occurrence of an event of
default, insurance proceeds or condemnation awards or any breach of the
environmental covenants in the related Mortgage Loan documents.
41. The Assignment of Leases set forth in the Mortgage or separate
from the related Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and enforceable lien
and security interest in the related Mortgagor's interest in all leases,
subleases, licenses or other agreements pursuant to which any person is entitled
to occupy, use or possess all or any portion of the real property subject to the
related Mortgage.
8
<PAGE>
SCHEDULE II
Ground Lease Representations and Warranties
1. 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.
2. 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 Mortgagee under the leasehold estate and its assigns without the consent of
the lessor thereunder (or, if any such consent is required, it has been obtained
prior to the Closing Date).
3. Such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the Mortgagee and that any such
action without such consent is not binding on the Mortgagee, its successors or
assigns, except if an event of default occurs under the Ground Lease and notice
is provided to the Mortgagee and such default is curable by the Mortgagee, but
remains uncured beyond the applicable cure period.
4. To the 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.
5. The ground lease or ancillary agreement between the lessor and the
lessee requires the lessor to give notice of any default by the lessee to the
Mortgagee. The ground lease or ancillary agreement further provides that no
notice given is effective against the Mortgagee unless a copy has been given to
the Mortgagee in a manner described in the ground lease or ancillary agreement.
6. The ground lease is not subject to any liens or encumbrances
superior to, or of equal priority with, the Mortgage, subject, however, to only
the Title Exceptions or is subject to a subordination, non-disturbance and
attornment agreement to which the mortgagee on the lessor's fee interest in the
Mortgaged Property is subject.
7. 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.
8. Such Ground Lease has an original term (together with any extension
options, whether or not currently exercised, set forth therein all of which can
be exercised by the Mortgagee if the mortgagee acquires the lessee's rights
under the Ground Lease) that extends not less than (x) 20 years beyond the
Stated Maturity Date and (y) beyond the full amortization
9
<PAGE>
period of any related Mortgage Loan that is not an interest-only Mortgage Loan
for its entire term.
9. 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 award (other than
in respect of a total or substantially total loss or taking) 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 repair or restoration progresses, or to the
payment of the outstanding principal balance of the Mortgage Loan, together with
any accrued interest (except in cases where a different allocation would not be
viewed as commercially unreasonable by any institutional investor, taking into
account the relative duration of the ground lease and the related Mortgage and
the ratio of the market value of the related Mortgaged Property to the
outstanding principal balance of such Mortgage Loan).
10. The ground lease does not impose any restrictions on subletting
that would be viewed as commercially unreasonable by a prudent commercial
lender.
11. 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.
10
<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"):
(1) Except with respect to the Mortgage Loan as indicated in Exhibit
III-A hereto, 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").
(2) 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.
(3) 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.
11
<PAGE>
SCHEDULE IV
Credit Lease Loan Representations and Warranties
1. 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.
2. The Mortgagor does not have any material monetary obligations under
the related Credit Lease, and every material 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.
3. The Mortgagor does not have any nonmonetary obligations under the
related Credit Lease, except for the delivery of possession of the leased
property.
4. 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.
5. 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.
6. Based upon the customary due diligence performed by the originator
at origination, each property related to a Credit Lease Loan is one or more
separate tax lots, except properties concerning which adequate funds have been
escrowed to cover taxes due on the entire tax lot or lots.
7. 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 (except to the extent caused by the
act or omission of the Mortgagor or its agents or employees), 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.
8. 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.
12
<PAGE>
9. In connection with Credit Lease Loans with respect to which a
Guaranty exists from the rated parent or affiliate of the tenant, based on legal
opinions and due diligence customarily performed in the origination of
Comparable Mortgage Loans by the Seller, such guaranty is legal, valid and
binding against the guarantor, such guaranty provides that it is a guaranty of
both performance and payment of the financial obligations of the Tenant, and may
not be amended or released without the Mortgagee's consent, and such Guaranty,
on its face, contains no conditions to such payment.
10. Except for the Credit Lease Loans which have residual value
insurance, each Credit Lease Loan fully amortizes over the term of the loan, and
there is no "balloon" payment due under such Credit Lease Loan at maturity.
11. No Tenant under a Credit Lease Loan may exercise any termination
right or offset or set-off right which shall be binding upon the related
Mortgagee without providing prior written notice of same to such Mortgagee.
12. Each Tenant under each Credit Lease Loan is required to make all
rental payments due under the applicable Credit Lease directly to a lock-box
being maintained by or on behalf of the Mortgagee.
13. No material modification or amendment of any Credit Lease Loan
shall be binding upon the related Mortgagee without such Mortgagee's prior
written notice consent to such material modification or amendment, which consent
may not be unreasonably unwithheld.
14. Each property related to a Credit Lease Loan has or will have a
permanent Certificate of Occupancy, and the related Tenant thereunder has
commenced the payment of rent due under the respective Credit Tenant Lease in
accordance with its terms.
15. Each Tenant has delivered a Subordination, Non-disturbance and
Attornment Agreement pursuant to which the respective Tenant has agreed in the
event the related Mortgagee succeeds to the interest of the Mortgagor under the
Credit Lease by reason of foreclosure or acceptance of a deed in lieu of
foreclosure, the Tenant will attorn to and recognize the Mortgagee as its
landlord under the Lease for the remainder of the term of the Credit Lease.
16. To the Seller's knowledge, the property related to each Credit
Lease Loan is not subject to any other lease other than the related Credit Lease
or any ground lease pursuant to which the related Mortgagor has acquired its
interest in the respective property, no person has any possessory interest in,
or right to occupy, the subject property except under and pursuant to any such
Credit Lease or ground lease and the related Tenant under each Credit Lease is
in occupancy of the demised premises.
13
<PAGE>
EXCEPTION EXHIBITS
14
<PAGE>
EXHIBIT A
Mortgage Loan Schedule
FUNB Mortgage Loans transferred pursuant to this Agreement are set forth on
Exhibit B to the Pooling and Servicing Agreement under the column heading
"Seller" and with the designation "FUNB Seller".
15
<PAGE>
FIRST UNION NATIONAL BANK COMMERCIAL MORTGAGE TRUST SERIES 2000-C1
MORTGAGE LOAN SCHEDULE CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS
FUNB LOANS ONLY AND MORTGAGED PROPERTIES
<TABLE>
<CAPTION>
Control Name Zip
Number Property Address City State Code
- ------ -------- ------- ---- ----- ----
<S> <C> <C> <C> <C> <C>
111 102-104 East 116th Street 102-104 East 116th Street New York NY 10035
140 1342 N. Detroit 1342 N. Detroit Street Hollywood CA 90069
120 170 Portola Road 170 Portola Valley Road Portola Valley CA 94028
144 204 Lakeview Avenue 204 Lakeview Avenue Clifton NJ 07011
119 5 Daniel Road 5 Daniel Road Fairfield NJ 07004
145 554-562 Valley Road 554-562 Valley Road West Orange NJ 07052
134 63 Elm Street Apartments 63 Elm Street Montclair NJ 07042
115 866 Westmount Apts. 866 Westmount Drive West Hollywood CA 90069
137 Alma School Shopping Center 2950 South Alma School Mesa AZ 85210
122 Amber Square Apartments 2803 Woodbury Drive San Antonio TX 78217
136 Amberwood Apartments Phase II 1308 - 1309 Amberwood Drive Norfolk NE 68701
69 Ashler Oaks Apartments 4100 Parkdale Drive San Antonio TX 78229
91 Ashton Hall ALF 1155 Hwy 29S Lawrenceville GA 30245
19 Atrium Mall @ James R. Thompson Center 100 W. Randolph Street Chicago IL 60601
107 Bear Valley Shopping Center 25030-25100 Allesandro Blvd Moreno Valley CA 92553
20 Beltway Plaza Retail Center 9310-9340 South Eastern Avenue Henderson NV 89014
39 Big V Shopping Center 1129-1131 Campbell Avenue West Haven CT 06516
29 Bristol Place Shopping Center 3310-3398 South Bristol Street Santa Ana CA 92701
127 BT Self Storage 126 Hamburg Turnpike Bloomingdale NJ 07403
88 Campus Walk Apartments 950 Hudson Road Marietta GA 30060
118 Carlton Court Apartments 5024 E. Thomas Rd Phoenix AZ 85018
81 Cedar Street Design Center 601, 619 & 623 Cedar Street Charlotte NC 28202
67 Chapin Center 1419 Chapin Road Chapin SC 29036
86 Chaska Business Center 343 82nd Street Chaska MN 55318
23 Chateau Vestavia 2435 Columbiana Road Birmingham AL 35216
7 Club Lake Pointe Apartments 555 Lakeview Drive Coral Springs FL 33071
53 College Park Shopping Center 5110-5158 South Rural Road Tempe AZ 85282
94 Colonial Shopping Center 430 North Country Road St. James NY 11780
63 Comfort Inn-Bossier City, LA 1100 Delhi Avenue Bossier City LA 71111
44 Crescent Cove Apartments 2500 Crescent Cove Drive Evans CO 80620
121 Crystal Trace Apartments 1901 South 26th Street Ft. Pierce FL 34947
73 Eagle Rock II 3760 University Blvd. South Jacksonville FL 32216
77 Edgewood Apartments 1601 Highway 90 West Sealy TX 77474
123 Elm Lake Apartments 6318 14th Street East Bradenton FL 34203
124 Elm Tree Apartments 3401 South 200 East Salt Lake City UT 84115
106 Enterprise Center 11833 Canon Boulevard Newport News VA 23606
42 Esprit Luxury Villas 9830 Reagan Rd. San Diego CA 92126
14 Fountain Valley Center 16027-16205 Brookhurst Street Fountain Valley CA 92708
40 Gateway East Medical Office Buildings 7852,7878 and 7888 Gateway East Boulevard El Paso TX 79915
27 Giant Fredericksburg Leavells Road and Route 208 Fredericksburg VA 22407
139 Grace & First Street Apartments 13-15-17 East Grace Street Richmond VA 23219
68 Grandview Apartments Phase II 1319 East 45th Street Kearney NE 68847
18 Hampton Inn - King of Prussia 530 West Dekalb Pike King of Prussia PA 19406
17 Hampton Inn - Meadowlands 250 Harmon Meadow Blvd. Secaucus NJ 07094
26 Hampton Inn - Newark Airport 1128-1138 Spring Street Elizabeth NJ 07207
56 Hampton Inn - San Antonio 11010 Huebnor Road West San Antonio TX 78230
138 Harvest Plaza 3564 Wesley Chapel Road Decatur GA 30034
100 Hawthorne Square Shopping Center 3407 Montrose Blvd. Houston TX 77006
2 Hawthorne Works Shopping Center 4629 West Cermak Cicero IL 60804
112 Horizon Center 8035 Snouffer School Road Gaithersburg MD 20879
79 Kennesaw Commons Apartments 419 Idlewood Road Kennesaw GA 30144
113 Lake Sahara Office Building IV 8685 West Sahara Avenue Las Vegas NV 89117
61 Lakes Mechandise Mart 3849-3999 NW 19th Street Lauderdale Lakes FL 33311
55 Lexington Village Senior Apartments 5000 South 107th Street Greenfield WI 53228
92 Linden Tower Apartments 116-118 E. Franklin Street Richmond VA 23219
78 Lower Pyne Building 92-98 Nassau Street Princeton NJ 07042
128 Main Street Commons 190-194 Main Street Westport CT 06880
132 Manor Ridge Apartments 210 South Main Street Wingate NC 28174
22 MAR Center 141-331 N. Atlantic Boulevard Monterey Park CA 90808
21 Marriott Courtyard - Tampa 102 East Cass Street Tampa FL 33602
<CAPTION>
Monthly
P&I For All
Payments Monthly Balloon
Following P&I Mortgage
Cut-Off Expiration Payment Original Remaining Loans, the
Date of Any Scheduled Term to Term to Maturity Remaining Orig. Remain.
Control Loan Applicable for Mortgage Maturity Maturity Date or Amort. Amort. Amort.
Number Balance IO Periods 6/1/00 Rate or ARD or ARD ARD Term Term Term
- ------ ------- ---------- ------ ---- ------ ------ --- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
111 1,572,089 12,341 12,341 8.7200% 120 119 04/01/2010 359 360 359
140 779,532 6,025 6,025 8.5500% 120 119 04/01/2010 359 360 359
120 1,298,840 10,910 10,910 9.0000% 120 119 04/01/2010 299 300 299
144 298,823 2,326 2,326 8.6250% 120 119 04/01/2010 359 360 359
119 1,361,163 10,731 10,731 8.7500% 120 116 01/01/2010 356 360 356
145 211,884 1,706 1,706 9.0000% 120 119 04/01/2010 359 360 359
134 883,269 7,121 7,121 9.0000% 120 116 01/01/2010 356 360 356
115 1,471,016 11,175 11,175 8.3400% 120 115 12/01/2009 355 360 355
137 793,710 6,448 6,448 9.0900% 120 117 02/01/2010 357 360 357
122 1,246,156 9,493 9,493 8.3750% 120 116 01/01/2010 356 360 356
136 837,617 6,252 6,252 8.1500% 120 115 12/01/2009 355 360 355
69 3,234,819 24,905 24,905 8.4900% 120 116 01/01/2010 356 360 356
91 2,298,776 18,714 18,714 9.1250% 120 119 04/01/2010 359 360 359
19 11,500,000 88,670 81,746 8.5300% 120 117 02/01/2010 360 360 360
107 1,618,298 12,996 12,996 8.9600% 120 117 02/01/2010 357 360 357
20 11,472,586 85,830 85,830 8.1800% 120 116 01/01/2010 356 360 356
39 6,856,033 50,575 50,575 8.0300% 120 116 01/01/2010 356 360 356
29 9,142,500 70,817 65,369 8.5800% 120 117 02/01/2010 360 360 360
127 1,052,435 9,309 9,309 9.6250% 120 117 02/01/2010 297 300 297
88 2,355,808 18,188 18,188 8.5200% 120 116 01/01/2010 356 360 356
118 1,362,684 10,861 10,861 8.8750% 120 117 02/01/2010 357 360 357
81 2,504,881 20,525 20,525 8.6900% 120 118 03/01/2010 298 300 298
67 3,366,177 28,396 28,396 8.7500% 120 119 04/01/2010 275 276 275
86 2,425,542 21,585 21,585 8.1000% 59 54 11/01/2004 211 216 211
23 10,527,405 82,094 82,094 8.6300% 120 116 01/01/2010 356 360 356
7 19,711,917 146,261 146,261 8.0920% 120 116 01/01/2010 356 360 356
53 4,335,398 33,409 33,409 8.5000% 180 176 01/01/2015 356 360 356
94 2,254,709 17,982 17,982 8.8750% 120 115 12/01/2009 355 360 355
63 3,631,431 30,257 30,257 8.8500% 120 114 11/01/2009 294 300 294
44 5,344,795 39,892 39,892 8.1500% 120 115 12/01/2009 355 360 355
121 1,297,263 10,181 10,181 8.7000% 120 116 01/01/2010 356 360 356
73 2,938,780 22,971 22,971 8.6600% 120 117 02/01/2010 357 360 357
77 2,593,550 20,191 20,191 8.6250% 120 118 03/01/2010 358 360 358
123 1,169,125 8,674 8,674 7.8750% 336 330 11/01/2027 336 330
124 1,147,021 8,843 8,843 8.5000% 120 115 12/01/2009 355 360 355
106 1,664,958 13,138 13,138 8.7500% 120 114 11/01/2009 354 360 354
42 5,887,149 45,617 45,617 8.5600% 120 116 01/01/2010 356 360 356
14 13,092,210 101,564 101,564 8.5900% 120 119 04/01/2010 359 360 359
40 6,083,736 46,429 46,429 8.3900% 120 115 12/01/2009 355 360 355
27 9,767,555 Steps 73,151.88 8.4734% 300 298 03/01/2025 300 298
139 783,685 6,281 6,281 8.9375% 120 117 02/01/2010 357 360 357
68 3,350,468 25,007 25,007 8.1500% 120 115 12/01/2009 355 360 355
18 11,724,675 88,424 88,424 8.2500% 120 113 10/01/2009 353 360 353
17 11,809,347 89,063 89,063 8.2500% 120 113 10/01/2009 353 360 353
26 9,918,656 74,804 74,804 8.2500% 120 113 10/01/2009 353 360 353
56 4,014,481 30,276 30,276 8.2500% 120 113 10/01/2009 353 360 353
138 788,549 6,499 6,499 9.2500% 120 116 01/01/2010 356 360 356
100 2,029,541 16,154 16,154 8.8600% 120 117 02/01/2010 357 360 357
2 24,802,000 185,632 169,687 8.2100% 120 116 01/01/2010 360 360 360
112 1,549,564 12,768 12,768 9.2500% 120 117 02/01/2010 357 360 357
79 2,548,480 19,752 19,752 8.5800% 120 119 04/01/2010 359 360 359
113 1,508,629 12,431 12,431 9.2500% 120 117 02/01/2010 357 360 357
61 3,662,748 29,873 29,873 8.6100% 120 116 01/01/2010 296 300 296
55 4,178,520 30,089 30,089 7.7500% 360 352 09/01/2029 360 352
92 2,295,945 17,992 17,992 8.6875% 120 117 02/01/2010 357 360 357
78 2,574,312 19,856 19,856 8.5100% 120 116 01/01/2010 356 360 356
128 997,790 7,689 7,689 8.5000% 120 116 01/01/2010 356 360 356
132 939,405 6,689 6,689 7.6250% 360 352 09/01/2029 360 352
22 10,672,213 77,100 77,100 7.8100% 120 116 01/01/2010 356 360 356
21 10,760,874 87,569 87,569 8.5830% 120 116 01/01/2010 296 300 296
<CAPTION>
Is the
Mortgage Interest
Loan Total Rate Effective Is the
Secured Master Administ- During Date of Mortgage Credit
by a Servicing rative Hyper- Hyper Loan an Lease
Control Ground Fee Fee ARD Amort Amort Actual/360 Loan Loan CTL
Number Lease? Rate Rate Loans Period? Provisions Loan? Seller Flag Guarantor
- ------ ------ ---- ---- ----- ------- ---------- ----- ------ ---- ---------
<C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
111 N 0.0250% 0.05385% N NA NA Y FUNB
140 N 0.0250% 0.05385% N NA NA Y FUNB
120 Y 0.0250% 0.05385% N NA NA Y FUNB
144 N 0.0250% 0.05385% N NA NA Y FUNB
119 N 0.0250% 0.05385% N NA NA Y FUNB
145 N 0.0250% 0.05385% N NA NA Y FUNB
134 N 0.0250% 0.05385% N NA NA Y FUNB
115 N 0.0250% 0.05385% N NA NA Y FUNB
137 N 0.0250% 0.05385% N NA NA Y FUNB
122 N 0.0250% 0.05385% N NA NA Y FUNB
136 N 0.0250% 0.05385% N NA NA Y FUNB
69 N 0.0250% 0.05385% N NA NA Y FUNB
91 N 0.0250% 0.05385% N NA NA Y FUNB
19 Y 0.0250% 0.05385% N NA NA Y FUNB
107 N 0.0250% 0.05385% N NA NA Y FUNB
20 N 0.0250% 0.05385% N NA NA Y FUNB
39 N 0.0250% 0.05385% N NA NA Y FUNB
29 N 0.0250% 0.05385% N NA NA Y FUNB
127 N 0.0250% 0.05385% N NA NA Y FUNB
88 N 0.0250% 0.05385% N NA NA Y FUNB
118 N 0.0250% 0.05385% N NA NA Y FUNB
81 N 0.0250% 0.05385% N NA NA Y FUNB
67 N 0.0250% 0.05385% N NA NA Y FUNB
86 N 0.0250% 0.05385% Y 10.10000% 11/01/2004 Y FUNB
23 N 0.0250% 0.05385% N NA NA Y FUNB
7 N 0.0250% 0.05385% N NA NA Y FUNB
53 N 0.0250% 0.08885% N NA NA Y FUNB
94 N 0.0250% 0.05385% N NA NA Y FUNB
63 N 0.0250% 0.05385% N NA NA Y FUNB
44 N 0.0250% 0.05385% N NA NA Y FUNB
121 N 0.0250% 0.05385% N NA NA Y FUNB
73 N 0.0250% 0.05385% N NA NA Y FUNB
77 N 0.0250% 0.05385% N NA NA Y FUNB
123 N 0.0250% 0.05385% N NA NA N FUNB
124 N 0.0250% 0.05385% N NA NA Y FUNB
106 N 0.0250% 0.05385% N NA NA Y FUNB
42 Y 0.0250% 0.05385% N NA NA Y FUNB
14 N 0.0250% 0.06885% N NA NA Y FUNB
40 N 0.0250% 0.05385% N NA NA Y FUNB
27 N 0.0250% 0.05385% N NA NA N FUNB CTL Giant Food, Inc.
139 N 0.0250% 0.05385% N NA NA Y FUNB
68 N 0.0250% 0.05385% N NA NA Y FUNB
18 N 0.0250% 0.05385% N NA NA Y FUNB
17 Y 0.0250% 0.05385% N NA NA Y FUNB
26 N 0.0250% 0.05385% N NA NA Y FUNB
56 N 0.0250% 0.05385% N NA NA Y FUNB
138 N 0.0250% 0.05385% N NA NA Y FUNB
100 N 0.0250% 0.05385% N NA NA Y FUNB
2 N 0.0250% 0.05385% N NA NA Y FUNB
112 N 0.0250% 0.05385% N NA NA Y FUNB
79 N 0.0250% 0.05385% N NA NA Y FUNB
113 N 0.0250% 0.05385% N NA NA Y FUNB
61 N 0.0250% 0.05385% N NA NA Y FUNB
55 N 0.0250% 0.05385% N NA NA Y FUNB
92 N 0.0250% 0.05385% N NA NA Y FUNB
78 N 0.0250% 0.05385% N NA NA Y FUNB
128 N 0.0250% 0.05385% N NA NA Y FUNB
132 N 0.0250% 0.05385% N NA NA N FUNB
22 N 0.0250% 0.05385% N NA NA Y FUNB
21 Y 0.0250% 0.05385% N NA NA Y FUNB
<CAPTION>
Is the
Mortgage
Loan
insured Cross
by a Collater- Is the Is the
Lease alized Mortgage Mortgage Is the
Enhance- and Is the Loan a Loan Mortgage
ment Cross Mortgage Semi- secured Loan an
Policy Defaulted Loan a Annual by a Interest
Control or RVI Loan Defeasance Mortgage letter of Reserve
Number Policy? Flag Loan? Loan? credit? Loan? Lockbox
- ------ ------- ---- ----- ----- ------- ----- -------
<S> <C> <C> <C> <C> <C> <C> <C>
111 N Y N N Y
140 N Y N N Y
120 N Y N N Y
144 N Trematore Y N N Y
119 N Y N N Y
145 N Trematore Y N N Y
134 N Y N N Y
115 N Y N N Y
137 N Y N N Y
122 N Lynd Y N N Y
136 N Timm Y N N Y
69 N Y N N Y
91 N Y N N Y
19 N Y N N Y
107 N Y N N Y
20 N Y N N Y
39 N Y N N Y
29 N Y N N Y
127 N Y N N Y
88 N Y N N Y
118 N Y N N Y
81 N Y N N Y
67 N Y N N Y
86 N Y N N Y
23 N Y N N Y
7 N Y N Y Y Springing
53 N Y N N Y
94 N Y N N Y
63 N Y N N Y
44 N Timm Y N N Y
121 N Y N N Y
73 N Y N N Y
77 N Y N N Y
123 N N N N N
124 N Y N N Y
106 N Y N N Y
42 N Y N N Y
14 N Y N N Y
40 N Y N N Y
27 Y Y N N N Hard
139 N Y N N Y
68 N Timm Y N N Y
18 N Y N N Y Springing
17 N Y N N Y Springing
26 N Y N N Y Springing
56 N Y N N Y Springing
138 N Y N N Y
100 N Y N N Y
2 N Y N N Y
112 N Y N N Y
79 N Y N N Y
113 N Y N N Y
61 N Y N N Y
55 N N N N Y
92 N Y N N Y
78 N Y N N Y
128 N Y N N Y
132 N N N N N
22 N Y N N Y
21 N Y N N Y
<CAPTION>
Annual
Monthly Dep
Replacement Annual Annual Replace- Upfront Initial
Control Reserves Tax Insurance ment TI/LC at Repair
Number Escrow Escrow Escrow Reserve Closing Reserves
- ------ ------ ------ ------ ------- ------- --------
<S> <C> <C> <C> <C> <C> <C>
111 562.50 10,156.56 3,509.40 6,750.00 0.00 5,625.00
140 187.50 13,005.00 2,400.00 2,250.00 0.00 0.00
120 92.36 15,019.56 5,715.96 1,108.32 0.00 0.00
144 97.40 10,686.84 2,733.00 1,168.80 0.00 1,250.00
119 490.83 31,950.00 4,486.08 5,889.96 0.00 0.00
145 96.15 10,506.96 3,651.96 1,153.80 0.00 12,500.00
134 939.25 33,750.00 8,584.68 11,271.00 0.00 10,218.75
115 655.00 27,066.96 4,112.16 7,860.00 0.00 3,000.00
137 360.64 14,368.44 2,061.00 4,327.68 0.00 0.00
122 1333.33 23,062.08 6,825.00 15,999.96 0.00 3,250.00
136 500.00 16,284.00 1,237.80 6,000.00 0.00 0.00
69 3125.00 41,595.24 15,765.12 37,500.00 0.00 18,875.00
91 1750.00 22,588.32 10,431.96 21,000.00 0.00 625.00
19 590.44 0.00 0.00 7,085.28 0.00 0.00
107 405.60 18,701.28 2,157.00 4,867.20 0.00 0.00
20 674.78 37,905.00 9,645.96 8,097.36 50,000.00 0.00
39 435.85 91,907.28 15,093.96 5,222.28 0.00 4,281.25
29 1574.13 114,301.56 12,509.04 18,889.56 0.00 48,250.00
127 330.00 25,256.52 3,291.96 3,960.00 0.00 0.00
88 3000.00 45,662.40 12,390.00 36,000.00 0.00 19,325.00
118 937.50 9,065.64 3,438.00 11,250.00 0.00 0.00
81 386.67 33,206.52 8,388.00 4,640.04 110,000.00 0.00
67 525.11 58,620.60 5,447.04 6,301.32 0.00 5,250.00
86 0.00 83,601.96 4,163.04 0.00 0.00 0.00
23 3645.83 124,562.04 45,613.92 43,749.96 0.00 1,250.00
7 5000.00 327,106.32 90,518.04 60,000.00 0.00 0.00
53 678.10 81,757.56 8,076.00 8,137.20 0.00 0.00
94 163.33 40,162.56 9,939.00 1,959.96 0.00 12,050.00
63 4385.79 24,267.96 12,014.64 51,777.84 0.00 2,000.00
44 2000.00 50,175.96 5,404.20 24,000.00 0.00 0.00
121 875.00 30,160.44 8,647.68 10,500.00 0.00 3,125.00
73 2645.83 38,256.24 12,744.48 31,749.96 0.00 39,437.50
77 2901.33 50,448.36 21,920.04 34,815.96 0.00 21,937.50
123 1066.67 32,421.00 8,178.36 12,800.04 0.00 0.00
124 979.17 10,262.88 5,007.96 11,750.04 0.00 0.00
106 393.23 28,650.12 1,842.96 4,718.76 95,000.00 0.00
42 2250.00 81,638.28 9,500.04 27,000.00 0.00 56,500.00
14 2190.67 143,489.52 34,230.96 26,288.04 0.00 6,750.00
40 577.86 100,155.36 24,301.08 6,934.32 0.00 12,300.00
27 0.00 0.00 0.00 0.00 0.00 0.00
139 395.83 11,512.08 1,104.96 4,749.96 0.00 5,687.50
68 2000.00 71,497.56 5,319.24 24,000.00 0.00 0.00
18 12606.12 107,943.96 0.00 151,273.44 0.00 250.00
17 14170.83 174,627.00 0.00 168,880.92 0.00 11,812.50
26 12977.52 177,540.00 0.00 160,596.96 0.00 2,906.25
56 6677.32 103,148.52 9,888.96 80,244.00 0.00 0.00
138 180.50 7,953.60 2,676.00 2,166.00 0.00 0.00
100 119.35 44,722.08 6,369.00 1,432.20 50,000.00 0.00
2 3100.69 227,138.40 45,825.96 37,208.28 0.00 84,268.75
112 377.12 26,940.84 3,990.00 4,525.44 0.00 0.00
79 1000.00 30,347.16 15,500.04 12,000.00 0.00 14,125.00
113 150.71 13,083.48 2,300.04 1,808.52 0.00 0.00
61 1728.39 60,437.28 23,072.40 20,740.68 0.00 1,500.00
55 $1750 - 1st 5 yrs, $2250 next 5 yrs, $2750 til MD 10,259.04 12,194.04 21,000.00 0.00 0.00
92 875.00 26,864.04 4,599.96 10,500.00 0.00 4,862.50
78 315.13 76,208.28 5,043.00 3,781.56 0.00 13,000.00
128 127.01 23,673.48 3,417.00 1,524.12 0.00 0.00
132 534 - first 5 years, 667 - next 6 years, $800 til MD 14,019.36 2,468.40 6,408.00 0.00 0.00
22 855.21 129,279.12 27,963.96 10,262.52 0.00 10,000.00
21 13217.30 152,798.88 28,109.16 160,245.00 0.00 0.00
Initial
Environ- Future
Control mental TI/LC
Number Reserves Escrows?
- ------ -------- --------
111 0.00 NA
140 0.00 NA
120 0.00 NA
144 0.00 NA
119 0.00 NA
145 0.00 NA
134 30,000.00 NA
115 0.00 NA
137 0.00 NA
122 0.00 NA
136 0.00 NA
69 0.00 NA
91 0.00 NA
19 0.00 NA
107 0.00 NA
20 0.00 Y - See Footnote 1
39 0.00 NA
29 0.00 NA
127 0.00 NA
88 0.00 NA
118 0.00 NA
81 0.00 NA
67 0.00 NA
86 0.00 NA
23 0.00 NA
7 0.00 NA
53 0.00 NA
94 0.00 NA
63 0.00 NA
44 0.00 NA
121 0.00 NA
73 0.00 NA
77 0.00 NA
123 0.00 NA
124 0.00 NA
106 0.00 NA
42 0.00 NA
14 0.00 NA
40 0.00 NA
27 0.00 NA
139 0.00 NA
68 0.00 NA
18 0.00 NA
17 0.00 NA
26 625,000.00 NA
56 0.00 NA
138 0.00 NA
100 625.00 Y - See Footnote 1
2 0.00 NA
112 0.00 NA
79 0.00 NA
113 0.00 Y - See Footnote 1
61 0.00 NA
55 0.00 NA
92 0.00 NA
78 0.00 NA
128 0.00 NA
132 0.00 NA
22 0.00 NA
21 0.00 NA
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Control Name Zip
Number Property Address City State Code
- ------ -------- ------- ---- ----- ----
<S> <C> <C> <C> <C> <C>
32 Miami Garden Villas 12 NE 188th st. Miami CA 33179
80 Motel 6 1105 Pensacola 7226 Plantation Road Pensacola CA 32504
59 Motel 6 270 Pismo Beach 860 4th Street Pismo Beach CA 93449
43 Motel 6 28 St. Barb Goleta 5897 Calle Real Goleta CA 93117
57 Motel 6 414 Gainesville 4000 SW 40th Blvd. Gainesville CA 32608
74 Motel 6 525 Cleveland Macedonia 311 E. Highland Road Macedonia CA 44056
47 Motel 6 69 Cocoa Beach 3701 No. Atlantic Ave. Cocoa Beach CA 32031
60 Mountain View Apartments 5324 Preakness Lane Dallas CA 75211
103 North Forty Estates 1601 North Forty Loop Shreveport CA 71107
93 North Point Apartments 1520 North Point Drive Reston CA 20194
28 Northgate Shopping Center 2800 North Water Street Decatur CA 62526
12 Nottingham Apartments 333 Dominion Drive Katy CA 77450
90 Office Depot 2997 Watson Boulevard Warner Robins CA 31093
105 One South Place Apartments 1311 Berttie-Rand Street Knoxville CA 37920
6 Pacific Islands Apartments 2151 N. Green Valley Parkway Henderson CA 89014
71 Park Plaza Shopping Center 7400-7700 49th Street North Pinellas Park CA 33781
133 Pebble Beach Apartments 402-414 East Aviation Boulevard Universal City CA 78148
142 Pets Plus SC Rt 309 Quakertown CA 18951
35 Plantation Crossing 12220 - 12250 Sunrise Boulevard Plantation CA 33323
48 Plaza del Sol Apartments 46289 - 46299 Arabia Street Indio CA 92201
98 Prince William Plaza 14310 and 14440 Jefferson Davis Highway Woodbridge CA 22191
96 Ramona Industrial Center 740 Driving Park Avenue Rochester CA 14215
51 Residence Inn - Greenville 120 Milestone Way Greenville CA 29615
83 Riverstone Apartments 1870 South Atlanta Road Smyrna CA 30080
102 Sable Point Apartments Phase II Sable Point Drive Hurricane CA 25526
125 San Pedro Mobile Home Park 87401 State Road 905 Islamorada CA 33036
5 San Tropez Apartments 8025 West Russell Road Las Vegas CA 89113
15 School Street Shopping Center 265 Ellington Road East Hartford CA 06108
46 Shaw's Plaza 620 Middle Street Weymouth CA 02189
54 Shillington Shopping Center 500 East Lancaster Avenue Shillington CA 19607
52 Shoppes II at Riverdale Commons 12465 -12485 Poppy Street Coon Rapids CA 55433
62 Skipper Palms Shopping Center 2526-2560 Bearss Avenue Tampa CA 33618
101 Stadium Village Shopping Center 917-935 Washington Avenue S.E. Minneapolis CA 55414
13 Sterling University Arbors 1255 South College Street Auburn CA 36830
131 Studer Arms Apartments 1600 Center St. Jupiter CA 33458
114 Suffolk West Shopping Center 817 West Constance Road Suffolk CA 23434
10 The Atrium at Gainesville 2434 NW 41st Street Gainesville CA 32606
97 The Lighthouse Inn 3208 NE 11st Street Pompano Beach CA 33062
58 The Village at Johnson Creek Apartments 400 S. Collins Street Arlington CA 76010
16 Tiger Plaza Apartments 4445 Alvin Dark Baton Rouge CA 70820
65 Town Square Shopping Center 2001 Naperville Road Wheaton CA 60187
143 Trinity Park MHP 1800 Meridian Ct. Conroe CA 77301
38 Turtle Creek 121 Hickory Trace Dr. Nashville CA 37211
85 U-Haul Center City 1201 Washington Avenue Philadelphia CA 19147
126 U-Haul Conroe Center 1305 South I-45 Conroe CA 77301
89 U-Haul CT Clark Avenue 6000 Clark Avenue Cleveland CA 44102
108 U-Haul Memorial 1010 South Memorial Drive Tulsa CA 74112
72 U-Haul University 6701 South Dixie Highway Miami CA 33146
110 University Commons 600-602 Sherman Street Akron CA 44311
45 University Court Apartments 2102 N. Walnut St. Ellensburg CA 98926
50 Vanderbilt Court Apartments 12630 Ashford Point Dr. Houston CA 77082
129 Victory Place Apartments 3144 Chateau Drive East Point CA 30344
141 Vista Plaza 3516-3544 East Southern Avenue Mesa CA 85204
1 Washingtonian Center 15 Grand Corner Avenue Gaithersburg CA 20878
130 Wellington Place Shopping Center 200-240 Grapevine Hwy Hurst CA 76054
30 Westlink Village Apartments 505 North Tyler Street Wichita CA 67212
11 Wildwood Forest Apartments 455 Wildwood Forest Drive Spring CA 77380
104 Winston Plaza 31760 - 31762 Mission Trail Road Lake Elsinore CA 92530
<CAPTION>
Monthly
P&I For All
Payments Monthly Balloon
Following P&I Mortgage
Cut-Off Expiration Payment Original Remaining Loans, the
Date of Any Scheduled Term to Term to Maturity Remaining Orig. Remain.
Control Loan Applicable for Mortgage Maturity Maturity Date or Amort. Amort. Amort.
Number Balance IO Periods 6/1/00 Rate or ARD or ARD ARD Term Term Term
- ------ ------- ---------- ------ ---- ------ ------ --- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
32 8,774,844 65,309 65,309 8.1200% 120 115 12/01/2009 355 360 355
80 2,533,516 Steps 125,378.03 7.2350% 216 193 06/01/2016 247 270 247
59 3,750,686 Steps 185,613.03 7.2350% 216 193 06/01/2016 247 270 247
43 5,580,948 Steps 276,188.62 7.2350% 216 193 06/01/2016 247 270 247
57 3,921,991 Steps 194,090.55 7.2350% 216 193 06/01/2016 247 270 247
74 2,803,998 Steps 138,763.59 7.2350% 216 193 06/01/2016 247 270 247
47 5,130,145 Steps 253,879.37 7.2350% 216 193 06/01/2016 247 270 247
60 3,711,858 28,709 28,709 8.5400% 120 116 01/01/2010 356 360 356
103 1,856,248 14,799 14,799 8.8750% 120 116 01/01/2010 356 360 356
93 2,279,268 15,447 15,447 7.1250% 360 352 09/01/2029 360 352
28 9,246,344 72,802 72,802 8.7400% 120 117 02/01/2010 357 360 357
12 14,750,000 111,019 101,652 8.2700% 120 116 01/01/2010 360 360 360
90 2,309,961 18,462 18,462 8.3900% 153 151 12/01/2012 298 300 298
105 1,721,507 12,082 12,082 7.5000% 240 235 12/01/2019 355 360 355
6 20,800,000 152,333 138,320 7.9800% 180 176 01/01/2015 360 360 360
71 3,094,582 24,343 24,343 8.7300% 120 117 02/01/2010 357 360 357
133 924,127 7,548 7,548 8.6600% 117 116 01/01/2010 299 300 299
142 627,451 5,324 5,324 9.1250% 120 119 04/01/2010 299 300 299
35 7,658,669 58,533 58,533 8.4100% 120 116 01/01/2010 356 360 356
48 4,780,763 36,001 36,001 8.2500% 120 116 01/01/2010 356 360 356
98 2,096,769 17,623 17,623 9.0000% 120 118 03/01/2010 298 300 298
96 2,166,198 17,547 17,547 8.6250% 120 112 09/01/2009 304 312 304
51 4,490,252 34,866 34,866 8.5830% 120 116 01/01/2010 356 360 356
83 2,473,266 18,754 18,754 8.3200% 120 115 12/01/2009 355 360 355
102 1,895,743 13,285 13,285 7.5000% 180 177 02/01/2015 357 360 357
125 1,134,703 9,042 9,042 8.8700% 120 116 01/01/2010 356 360 356
5 21,825,000 164,271 150,411 8.2700% 120 118 03/01/2010 360 360 360
15 12,857,068 100,317 100,317 8.6400% 120 117 02/01/2010 357 360 357
46 5,246,639 39,368 39,368 8.2300% 120 119 04/01/2010 359 360 359
54 4,285,722 32,683 32,683 8.3750% 120 114 11/01/2009 354 360 354
52 4,342,598 34,564 34,564 8.8600% 120 117 02/01/2010 357 360 357
62 3,646,555 28,389 28,389 8.6250% 120 118 03/01/2010 358 360 358
101 1,948,427 15,901 15,901 9.1500% 120 118 03/01/2010 358 360 358
13 13,120,000 97,921 89,435 8.1800% 120 119 04/01/2010 360 360 360
131 964,445 7,592 7,592 8.7500% 120 119 04/01/2010 359 360 359
114 1,497,718 12,504 12,504 9.4000% 120 117 02/01/2010 357 360 357
10 15,864,611 121,919 121,919 8.4700% 120 116 01/01/2010 356 360 356
97 2,098,055 16,431 16,431 8.6900% 120 118 03/01/2010 358 360 358
58 3,904,270 28,720 28,720 8.0000% 180 176 01/01/2015 356 360 356
16 12,415,000 96,563 89,233 8.6250% 120 118 03/01/2010 360 360 360
65 3,491,549 25,987 25,987 8.1250% 120 116 01/01/2010 356 360 356
143 516,955 4,121 4,121 8.8750% 120 116 01/01/2010 356 360 356
38 7,286,842 56,545 56,545 8.5800% 120 117 02/01/2010 357 360 357
85 2,427,767 20,094 20,094 8.8200% 120 119 04/01/2010 299 300 299
126 1,057,028 8,749 8,749 8.8200% 120 119 04/01/2010 299 300 299
89 2,343,844 19,399 19,399 8.8200% 120 119 04/01/2010 299 300 299
108 1,613,516 13,355 13,355 8.8200% 120 119 04/01/2010 299 300 299
72 3,061,184 25,336 25,336 8.8200% 120 119 04/01/2010 299 300 299
110 1,598,595 12,725 12,725 8.8700% 120 118 03/01/2010 358 360 358
45 5,308,713 40,634 40,634 8.4400% 120 118 03/01/2010 358 360 358
50 4,587,216 34,494 34,494 8.2300% 120 115 12/01/2009 355 360 355
129 986,851 7,654 7,654 8.5700% 120 116 01/01/2010 356 360 356
141 723,122 5,575 5,575 8.5000% 120 115 12/01/2009 355 360 355
1 39,387,474 273,490 273,490 7.4000% 120 116 01/01/2010 356 360 356
130 981,579 8,445 8,445 9.2900% 120 118 03/01/2010 298 300 298
30 9,120,000 66,475 60,268 7.9300% 120 115 12/01/2009 360 360 360
11 15,654,661 116,078 116,078 8.0800% 120 115 12/01/2009 355 360 355
104 1,759,235 14,496 14,496 9.2500% 120 117 02/01/2010 357 360 357
<CAPTION>
Is the
Mortgage Interest
Loan Total Rate Effective Is the
Secured Master Administ- During Date of Mortgage Credit
by a Servicing rative Hyper- Hyper Loan an Lease
Control Ground Fee Fee ARD Amort Amort Actual/360 Loan Loan CTL
Number Lease? Rate Rate Loans Period? Provisions Loan? Seller Flag Guarantor
- ------ ------ ---- ---- ----- ------- ---------- ----- ------ ---- ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
32 N 0.0250% 0.05385% N NA NA Y FUNB
80 N 0.0250% 0.20500% N NA NA N FUNB CTL Accor SA
59 N 0.0250% 0.20500% N NA NA N FUNB CTL Accor SA
43 N 0.0250% 0.20500% N NA NA N FUNB CTL Accor SA
57 N 0.0250% 0.20500% N NA NA N FUNB CTL Accor SA
74 N 0.0250% 0.20500% N NA NA N FUNB CTL Accor SA
47 N 0.0250% 0.20500% N NA NA N FUNB CTL Accor SA
60 N 0.0250% 0.05385% N NA NA Y FUNB
103 N 0.0250% 0.05385% N NA NA Y FUNB
93 N 0.0250% 0.05385% N NA NA Y FUNB
28 N 0.0250% 0.05385% N NA NA Y FUNB
12 N 0.0250% 0.05385% N NA NA Y FUNB
90 N 0.0250% 0.05385% N NA NA Y FUNB
105 N 0.0250% 0.05385% N NA NA N FUNB
6 N 0.0250% 0.05385% N NA NA Y FUNB
71 N 0.0250% 0.05385% N NA NA Y FUNB
133 N 0.0250% 0.05385% N NA NA Y FUNB
142 N 0.0250% 0.05385% N NA NA Y FUNB
35 N 0.0250% 0.05385% N NA NA Y FUNB
48 N 0.0250% 0.05385% N NA NA Y FUNB
98 N 0.0250% 0.05385% N NA NA Y FUNB
96 N 0.0250% 0.05385% N NA NA Y FUNB
51 Y 0.0250% 0.05385% N NA NA Y FUNB
83 N 0.0250% 0.05385% N NA NA Y FUNB
102 N 0.0250% 0.05385% N NA NA N FUNB
125 N 0.0250% 0.05385% N NA NA Y FUNB
5 N 0.0250% 0.05385% N NA NA Y FUNB
15 N 0.0250% 0.05385% N NA NA Y FUNB
46 N 0.0250% 0.05385% N NA NA Y FUNB
54 N 0.0250% 0.05385% N NA NA Y FUNB
52 N 0.0250% 0.05385% N NA NA Y FUNB
62 N 0.0250% 0.05385% N NA NA Y FUNB
101 N 0.0250% 0.05385% N NA NA Y FUNB
13 N 0.0250% 0.05385% N NA NA Y FUNB
131 N 0.0250% 0.05385% N NA NA Y FUNB
114 Y 0.0250% 0.05385% N NA NA Y FUNB
10 N 0.0250% 0.05385% N NA NA Y FUNB
97 N 0.0250% 0.05385% N NA NA Y FUNB
58 N 0.0250% 0.05385% N NA NA Y FUNB
16 N 0.0250% 0.06885% N NA NA Y FUNB
65 Y 0.0250% 0.05385% N NA NA Y FUNB
143 N 0.0250% 0.05385% N NA NA Y FUNB
38 N 0.0250% 0.05385% N NA NA Y FUNB
85 Y (See Footnote 2) 0.0250% 0.05385% N NA NA Y FUNB
126 Y (See Footnote 2) 0.0250% 0.05385% N NA NA Y FUNB
89 Y (See Footnote 2) 0.0250% 0.05385% N NA NA Y FUNB
108 Y (See Footnote 2) 0.0250% 0.05385% N NA NA Y FUNB
72 Y (See Footnote 2) 0.0250% 0.05385% N NA NA Y FUNB
110 N 0.0250% 0.05385% N NA NA Y FUNB
45 N 0.0250% 0.05385% N NA NA Y FUNB
50 N 0.0250% 0.05385% N NA NA Y FUNB
129 N 0.0250% 0.05385% N NA NA Y FUNB
141 N 0.0250% 0.05385% N NA NA Y FUNB
1 N 0.0250% 0.05385% N NA NA Y FUNB
130 N 0.0250% 0.05385% N NA NA Y FUNB
30 N 0.0250% 0.05385% N NA NA Y FUNB
11 N 0.0250% 0.05385% N NA NA Y FUNB
104 N 0.0250% 0.05385% N NA NA Y FUNB
<CAPTION>
Is the
Mortgage
Loan
insured Cross
by a Collater- Is the Is the
Lease alized Mortgage Mortgage Is the
Enhance- and Is the Loan a Loan Mortgage
ment Cross Mortgage Semi- secured Loan an
Policy Defaulted Loan a Annual by a Interest
Control or RVI Loan Defeasance Mortgage letter of Reserve
Number Policy? Flag Loan? Loan? credit? Loan? Lockbox
- ------ ------- ---- ----- ----- ------- ----- -------
<S> <C> <C> <C> <C> <C> <C> <C>
32 N Y N N Y
80 N N Y N N Hard
59 N N Y N N Hard
43 N N Y N N Hard
57 N N Y N N Hard
74 N N Y N N Hard
47 N N Y N N Hard
60 N Y N N Y
103 N Y N N Y
93 N N N N Y
28 N Y N N Y
12 N Y N N Y
90 N Y N N Y
105 N N N N N
6 N Y N N Y
71 N Y N N Y
133 N Lynd Y N N Y
142 N Y N N Y
35 N Y N N Y
48 N Y N N Y
98 N Y N N Y
96 N Y N N Y
51 N Y N N Y
83 N Y N N Y
102 N N N N N
125 N Y N N Y
5 N Y N N Y
15 N Y N N Y
46 N Y N N Y
54 N Y N N Y
52 N Y N N Y
62 N Y N N Y
101 N Y N N Y
13 N Y N N Y
131 N Y N N Y
114 N Y N N Y
10 N Y N N Y
97 N Y N N Y
58 N N N N Y
16 N Y N N Y
65 N Y N N Y
143 N Y N N Y
38 N Y N N Y
85 N U-Haul Pool III Y N N Y
126 N U-Haul Pool III Y N N Y
89 N U-Haul Pool III Y N N Y
108 N U-Haul Pool III Y N N Y
72 N U-Haul Pool III Y N N Y
110 N Y N N Y
45 N Y N N Y
50 N N N N Y
129 N Y N N Y
141 N Y N N Y
1 N Y N N Y
130 N Y N N Y
30 N Y N N Y
11 N Y N N Y
104 N Y N N Y
<CAPTION>
\
Annual
Monthly Dep
Replacement Annual Annual Replace- Upfront Initial
Control Reserves Tax Insurance ment TI/LC at Repair
Number Escrow Escrow Escrow Reserve Closing Reserves
- ------ ------ ------ ------ ------- ------- --------
<S> <C> <C> <C> <C> <C> <C>
32 7833.33 232,056.96 63,121.80 93,999.96 0.00 25,375.00
80 0.00 0.00 0.00 0.00 0.00 0.00
59 0.00 0.00 0.00 0.00 0.00 0.00
43 0.00 0.00 0.00 0.00 0.00 0.00
57 0.00 0.00 0.00 0.00 0.00 0.00
74 0.00 0.00 0.00 0.00 0.00 0.00
47 0.00 0.00 0.00 0.00 0.00 0.00
60 4333.33 51,514.68 21,611.88 51,999.96 0.00 69,875.00
103 1375.00 29,858.88 7,585.92 16,500.00 0.00 21,100.00
93 800 - first 5 years, 1000 - next 6 years, $1200 ti MD 41,441.04 4,134.00 9,600.00 0.00 0.00
28 1715.66 72,099.60 15,140.04 20,587.92 125,000.00 0.00
12 4433.33 352,659.12 18,714.00 53,199.96 0.00 0.00
90 0.00 0.00 0.00 0.00 0.00 0.00
105 $1,200 - 1st 5 yrs, $1,500 next 6 yrs, $1,800 til MD 42,407.16 10,805.04 14,400.00 0.00 0.00
6 7245.33 196,250.28 29,510.04 86,943.96 0.00 0.00
71 2085.50 149,975.04 18,692.40 25,026.00 $200,000 (LOC) 9,375.00
133 1270.83 18,278.88 7,580.04 15,249.96 0.00 5,125.00
142 262.50 25,651.56 2,196.00 3,150.00 0.00 9,375.00
35 587.35 143,492.04 37,147.20 7,048.20 0.00 0.00
48 3571.25 94,135.80 14,216.04 42,855.00 0.00 0.00
98 1137.15 41,459.40 5,222.04 13,645.80 0.00 106,968.75
96 1322.14 102,276.12 4,413.00 15,865.68 0.00 45,725.00
51 6044.14 47,328.00 11,301.24 74,819.40 0.00 0.00
83 1452.00 19,318.20 8,712.00 17,424.00 0.00 17,018.75
102 625.00 39,654.00 7,623.48 12,800.04 0.00 0.00
125 268.75 11,842.80 2,296.92 3,225.00 0.00 10,937.50
5 7000.00 210,464.64 30,000.00 84,000.00 0.00 0.00
15 1949.31 181,203.48 36,824.04 23,391.72 0.00 30,250.00
46 994.84 145,943.28 9,835.92 11,938.08 0.00 96,093.75
54 1131.45 92,396.04 12,867.00 13,577.40 0.00 186,948.75
52 351.44 33,871.08 7,013.04 4,217.28 0.00 0.00
62 1112.28 81,597.12 14,688.96 13,347.36 0.00 38,585.00
101 162.83 21,701.64 3,042.96 1,953.96 40,000.00 0.00
13 3750.00 107,391.96 0.00 45,000.00 0.00 5,875.00
131 625.00 13,375.08 7,623.48 7,500.00 0.00 0.00
114 594.48 29,414.52 2,361.00 7,133.76 0.00 3,750.00
10 5020.83 319,659.96 32,844.00 60,249.96 0.00 0.00
97 958.33 21,858.84 13,727.16 11,499.96 0.00 875.00
58 2333.33 85,104.00 18,206.04 27,999.96 0.00 0.00
16 6250.00 44,292.84 59,054.04 75,000.00 0.00 9,968.75
65 141.51 43,721.64 2,499.96 1,698.12 0.00 0.00
143 225.00 2,975.40 1,437.96 2,700.00 0.00 7,312.50
38 6906.67 164,757.96 40,902.00 82,880.04 0.00 9,812.50
85 757.79 0.00 3,848.04 8,938.92 0.00 12,000.00
126 499.00 0.00 2,714.04 5,988.00 0.00 3,800.00
89 845.44 0.00 3,843.00 10,145.28 0.00 8,575.00
108 609.33 0.00 6,915.96 7,311.96 0.00 0.00
72 626.99 0.00 6,911.04 7,395.96 0.00 5,750.00
110 750.00 33,078.84 4,947.96 9,000.00 0.00 0.00
45 2125.00 38,661.72 11,826.96 25,500.00 0.00 0.00
50 3075.00 92,209.20 22,978.92 36,900.00 0.00 38,725.00
129 1104.00 9,728.64 5,282.04 13,248.00 0.00 62,032.50
141 195.82 18,028.80 2,705.04 2,349.84 0.00 1,875.00
1 0.00 668,782.68 10,906.08 0.00 0.00 0.00
130 317.66 30,113.16 2,062.08 3,811.92 $43,200 (LOC) 12,912.50
30 4000.00 72,549.00 20,870.04 48,000.00 0.00 0.00
11 0.00 203,825.88 0.00 0.00 0.00 0.00
104 497.96 20,467.56 5,070.96 5,975.52 $100,000 (LOC) 937.50
Initial
Environ- Future
Control mental TI/LC
Number Reserves Escrows?
- ------ -------- --------
32 0.00 NA
80 0.00 NA
59 0.00 NA
43 0.00 NA
57 0.00 NA
74 0.00 NA
47 0.00 NA
60 0.00 NA
103 0.00 NA
93 0.00 NA
28 0.00 NA
12 0.00 NA
90 0.00 NA
105 0.00 NA
6 0.00 NA
71 0.00 NA
133 0.00 NA
142 0.00 NA
35 0.00 Y - See Footnote 1
48 0.00 NA
98 0.00 Y - See Footnote 1
96 0.00 Y - See Footnote 1
51 0.00 NA
83 0.00 NA
102 0.00 NA
125 0.00 NA
5 0.00 NA
15 0.00 NA
46 0.00 NA
54 0.00 Y - See Footnote 1
52 0.00 NA
62 300,000.00 NA
101 0.00 NA
13 0.00 NA
131 0.00 NA
114 0.00 NA
10 0.00 NA
97 0.00 NA
58 0.00 NA
16 0.00 NA
65 0.00 NA
143 0.00 NA
38 5,250.00 NA
85 0.00 NA
126 0.00 NA
89 0.00 NA
108 0.00 NA
72 0.00 NA
110 0.00 NA
45 0.00 NA
50 0.00 NA
129 0.00 NA
141 0.00 NA
1 0.00 NA
130 0.00 NA
30 0.00 NA
11 0.00 NA
104 0.00 NA
</TABLE>
(1) In addition to any such escrows funded at loan closing for potential TI/LC
expenses, these loans require funds to be escrowed during some or all of
the loan term for TI/LC expenses which may be incurred during the loan
term. In certain instances, escrowed funds may be released to borrower upon
satisfaction of certain leasing conditions.
(2) Fee interest subordinate to the leasehold interest (ie fee owner has joined
in the mortgage)
