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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of Report: June 17, 1999
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(Date of earliest event reported)
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
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(Exact name of registrant as specified in its charter)
DELAWARE 333-64551 13-3748219
(State or Other Jurisdiction (Commission File (I.R.S. Employer
of Incorporation) Number) Identification No.)
1285 Avenue of the Americas, New York, NY 10019
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(Address of principal executive offices)
Registrant's telephone number, including area code: (212) 713-7900
ITEM 5. OTHER EVENTS
Attached as Exhibit 1 to this Current Report is the
Underwriting Agreement (as defined below), as Exhibit 4.1 is the Pooling and
Servicing Agreement (as defined below) and as Exhibit 99 are the Mortgage Loan
Purchase and Sale Agreements (as defined below) in connection with PaineWebber
Mortgage Acceptance Corporation V (the "Registrant") Commercial Mortgage
Pass-Through Certificates, Series 1999-C1 (the "Certificates"). On June 7, 1999,
the Registrant caused the issuance, pursuant to a Pooling and Servicing
Agreement, dated as of June 1, 1999 (the "Pooling and Servicing Agreement"), by
and among the Registrant, as depositor, Banc One Mortgage Capital Markets, LLC,
as servicer, Banc One Mortgage Capital Markets, LLC, as special servicer,
LaSalle Bank National Association, as trustee, and ABN AMRO Bank, as fiscal
agent, of the Certificates, issued in thirteen classes. The Certificates
represent the entire beneficial ownership interest in a trust (the "Trust")
established pursuant to the Pooling and Servicing Agreement. The property of the
Trust is primarily comprised of a pool of mortgage loans purchased by the
Registrant from Paine Webber Real Estate Securities Inc. pursuant to the
Mortgage Loan Purchase and Sale Agreement dated as of June 1, 1999 (the "PW
Mortgage Loan Purchase and Sale Agreement") by and between the Registrant, as
purchaser and Paine Webber Real Estate Securities Inc., as mortgage loan seller
and of mortgage loans purchased by the Registrant from Merrill Lynch Mortgage
Capital Inc. pursuant to the Mortgage Loan Purchase and Sale Agreement dated as
of June 1, 1999 (the "ML Mortgage Loan Purchase and Sale Agreement," together
with the PW Mortgage Loan Purchase and Sale Agreement, the "Mortgage Loan
Purchase and Sale Agreements") by and between the Registrant, as purchaser and
Merrill Lynch Mortgage Capital Inc., as mortgage loan seller. The Class A-1,
Class A-2, Class X, Class B, Class C and Class D Certificates, with an aggregate
scheduled principal balance as of June 7, 1999 of $ 616,668,000 were sold to
PaineWebber Incorporated and Merrill Lynch, Pierce, Fenner & Smith Incorporated,
as underwriters (the "Underwriters"), pursuant to an Underwriting Agreement
dated as of June 1, 1999 by and among the Registrant and the Underwriters.
Capitalized terms used herein and not defined herein have the
same meanings ascribed to such terms in the Pooling and Servicing Agreement.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Not applicable.
(b) Not applicable.
(c) Exhibits
Exhibit 1 The Underwriting Agreement dated as of June 1, 1999 by and among
the Registrant, PaineWebber Incorporated and Merrill Lynch,
Pierce, Fenner & Smith Incorporated.
Exhibit 4.1 The Pooling and Servicing Agreement dated as of June 1, 1999 by
and among the Registrant, as depositor, Banc One Mortgage Capital
Markets, LLC, as servicer and special servicer, LaSalle Bank
National Association, as trustee, and ABN AMRO Bank N.V., as
fiscal agent.
Exhibit 99.1 PW Mortgage Loan Purchase and Sale Agreement dated as of June 1,
1999 by and between the Registrant, as purchaser and Paine Webber
Real Estate Securities Inc., as mortgage loan seller.
Exhibit 99.2 ML Mortgage Loan Purchase and Sale Agreement dated as of June 1,
1999 by and between the Registrant, as purchaser and Merrill
Lynch Mortgage Capital Inc., as mortgage loan seller.
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Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on behalf of the
Registrant by the undersigned thereunto duly authorized.
PAINEWEBBER MORTGAGE ACCEPTANCE
CORPORATION V
By: /s/ Steven J. Plust
-------------------------------------
Name: Steven J. Plust
Title: Managing Director
Date: June 17, 1999
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EXHIBIT INDEX
Item 601(a) of Regulation S-K
Exhibit No. Description Page
- ----------- ----------- ----
1 Underwriting Agreement
4.1 Pooling and Servicing Agreement
99.1 PW Mortgage Loan Purchase and Sale Agreement
99.2 ML Mortgage Loan Purchase and Sale Agreement
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PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
$616,668,000 (Approximate)
Commercial Mortgage Pass-Through Certificates
Series 1999-C1
UNDERWRITING AGREEMENT
New York, New York
June 1, 1999
PaineWebber Incorporated
1285 Avenue of the Americas, 19th Floor
New York, New York 10019
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center, North Tower
New York, New York 10281
Ladies and Gentlemen:
PaineWebber Mortgage Acceptance Corporation V, a Delaware
corporation (the "Company"), proposes to cause to be issued its Commercial
Mortgage Pass-Through Certificates, Series 1999-C1 (the "Certificates"),
consisting of 13 classes designated as the Class A-1, Class A-2, Class X, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class I, Class R and
Class LR Certificates under a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), to be dated as of June 1, 1999, among the Company, as
depositor (the "Depositor"), Banc One Mortgage Capital Markets, LLC, as servicer
(in such capacity, the "Servicer"), Banc One Mortgage Capital Markets, LLC, as
special servicer (in such capacity, the "Special Servicer"), LaSalle Bank
National Association , as trustee (the "Trustee") and ABN AMRO Bank N.V., as
fiscal agent (the "Fiscal Agent") and proposes to sell the Class A-1, Class A-2,
Class X, Class B, Class C and Class D Certificates (collectively, the "Offered
Certificates") to Merrill Lynch, Pierce, Fenner & Smith Incorporated ("MLPF&S")
and PaineWebber Incorporated ("PWI") as underwriters (each an "Underwriter" and
collectively, the "Underwriters"). The Certificates will represent in the
aggregate the entire beneficial ownership interest in a trust (the "Trust")
primarily consisting of a segregated pool (the "Mortgage Pool") of conventional
monthly pay fixed rate mortgage loans secured by commercial, multifamily,
health-care related, manufactured housing and credit tenant properties (the
"Mortgage Loans"). The Mortgage Loans will be purchased by the Company from
Paine Webber Real Estate Securities Inc. and Merrill Lynch Mortgage Capital Inc.
(collectively, the "Mortgage Loan Sellers") pursuant to two Mortgage Loan
Purchase and Sale Agreements (collectively, together with any supplements
thereto, the "Mortgage Loan Purchase Agreements"), each by and between the
Company and the applicable Mortgage Loan Seller, in exchange for immediately
available funds. The Offered Certificates are described more fully in the
Registration Statement (as
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hereinafter defined). This is to confirm the arrangements with respect to your
purchase of the Offered Certificates.
Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Final Prospectus (as hereinafter defined).
1. Representations and Warranties. 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 on Form S-3 (Registration
No. 333-64551) for the registration of the Offered Certificates, among other
mortgage pass-through certificates, under the Securities Act of 1933, as amended
(the "1933 Act"), which registration statement has become effective and copies
of which have heretofore been delivered to you. Such registration statement, as
amended as of 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 pursuant to Rule 424 under the 1933 Act a supplement to
the form of prospectus included in such registration statement relating to the
Offered Certificates and the plan of distribution thereof and has previously
advised you of all further information (financial and other) with respect to the
Offered Certificates and the Mortgage Pool to be set forth therein. Such
registration statement, including the exhibits thereto, as amended at the date
hereof, is hereinafter called the "Registration Statement"; the prospectus
included in the Registration Statement, as amended, is hereinafter called the
"Basic Prospectus"; such form of prospectus supplemented by the supplement to
the form of prospectus relating to the Offered Certificates, in the form in
which it shall be first filed with the Commission pursuant to Rule 424
(including the Basic Prospectus as so supplemented) is hereinafter called the
"Final Prospectus." Any preliminary form of the Final Prospectus 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 Rule 424(a) is
hereinafter called a "Preliminary Final Prospectus."
(b) (i) The Registration Statement, as of its effective date
or the effective date of any post-effective amendment thereto filed prior to the
Closing Date, and the Final Prospectus, as of the date that it is first filed
pursuant to Rule 424 under the 1933 Act or, as amended or supplemented, as of
the date such amendment or supplement is filed pursuant to Rule 424 under the
1933 Act, complied or will comply, as applicable, in all material respects with
the applicable requirements of the 1933 Act and the rules and regulations
thereunder, (ii) the Registration Statement as of its effective date and as of
the date of this Agreement, and, as amended by any such post-effective
amendment, as of the effective date of such amendment, did not and will not
contain any untrue statement of a material fact and did not omit and will not
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) the Final Prospectus as of
its issue date and as of the Closing Date, or as amended or supplemented, as of
the issue date of such amendment or supplement and as of the Closing Date, will
not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to the information
contained in or omitted from the Registration
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Statement or the Final Prospectus or any amendment thereof or supplement thereto
in reliance upon and in conformity with the information furnished in writing to
the Company by or on behalf of any Underwriter specifically for use in
connection with the preparation of the Registration Statement and the Final
Prospectus.
(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with full power and authority (corporate and other) to own its
properties and conduct its business, as now conducted by it, and to enter into
and perform its obligations under this Agreement, the Mortgage Loan Purchase
Agreements and the Pooling and Servicing Agreement; and the Company has received
no notice of proceedings relating to the revocation or modification of any
license, certificate, authority or permit applicable to its owning such
properties or conducting such business which singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially and
adversely affect the conduct of the business or the operations, financial
condition or income of the Company.
(d) At each of the following times there has not been and will
not have been or, to the knowledge of the Company, there is not contemplated and
will not have been contemplated by the Commission, (i) any request by the
Commission for any further amendment of the Registration Statement or the Final
Prospectus or for any additional information that has not been complied with,
(ii) any issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening of
any proceeding for that purpose or (iii) any notification with respect to the
suspension of the qualification of the Offered Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose: (a) the date on which the Final Prospectus is first filed pursuant to
Rule 424 under the 1933 Act; (b) each date, prior to the Closing Date (as
hereinafter defined), on which any amendment to the Registration Statement
becomes effective; (c) the date on which any supplement to the Final Prospectus
is filed with the Commission; and (d) the Closing Date.
(e) This Agreement and the Mortgage Loan Purchase Agreements
have been, and the Pooling and Servicing Agreement when executed and delivered
as contemplated hereby and thereby will have been, duly authorized, executed and
delivered by the Company, and each constitutes, or will constitute when so
executed and delivered, a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
enforceability may be limited by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors, (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.
(f) The Offered Certificates and the Pooling and Servicing
Agreement will each conform in all material respects to the descriptions thereof
contained in the Final Prospectus, and the Offered Certificates will have been
duly authorized prior to the issuance thereof, and the Offered Certificates will
be validly issued and outstanding and shall be entitled to the benefits of the
Pooling and Servicing Agreement, except as the enforceability thereof may be
limited by the effects of (i) bankruptcy, reorganization, insolvency,
moratorium, receivership, liquidation or other similar laws affecting the
enforcement of the rights of creditors, (ii) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law) and (iii)
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public policy considerations underlying the securities laws. The description of
the Offered Certificates in the Final Prospectus will be in substantially the
respective forms to be filed on Form 8-K within 15 days after the Closing Date
and incorporated by reference, as the case may be, as exhibits to the
Registration Statement.
(g) Neither the issuance of the Certificates, nor the
execution and delivery by the Company of this Agreement, the Mortgage Loan
Purchase Agreements 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, 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 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, which, in any such case, would materially and
adversely affect the ability of the Company to perform its obligations under
this Agreement, the Mortgage Loan Purchase Agreements or the Pooling and
Servicing Agreement. The Company is not a party to, bound by or in breach or
violation of any indenture or other agreement or instrument, or subject to or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects, or is reasonably likely in the future to
materially and adversely affect, the ability of the Company to perform its
obligations under this Agreement, the Mortgage Loan Purchase Agreements or the
Pooling and Servicing Agreement.
(h) There are no actions or proceedings against, or
investigations of, the Company pending, or, to the knowledge of the Company,
threatened, before any court, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, the Mortgage Loan Purchase
Agreements, the Pooling and Servicing Agreement or the Offered Certificates,
(ii) seeking to prevent the issuance of the Offered Certificates or the
consummation of any of the transactions contemplated by this Agreement, the
Mortgage Loan Purchase Agreements or the Pooling and Servicing 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
Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or the
Offered Certificates or (iv) seeking to affect adversely the federal income tax
attributes of the Offered Certificates as described in the Final Prospectus.
(i) The Trust created by the Pooling and Servicing Agreement
will not be required to be registered as an investment company under the
Investment Company Act of 1940, as amended (the "Investment Company Act"), and
the Pooling and Servicing Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
(j) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Company will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale of
the Certificates to the Underwriters pursuant to this Agreement as a sale of the
interests in the Mortgage Loans evidenced by the Certificates. The consideration
received by the Company upon the sale of the Certificates to the Underwriters
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will constitute reasonably equivalent value and fair consideration for the
Certificates. The Company will be solvent at all relevant times prior to, and
will not be rendered insolvent by, the sale of the Offered Certificates to the
Underwriters. The Company is not selling Certificates to the Underwriters with
any intent to hinder, delay or defraud any creditors of the Company.
(k) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by
the Company of its obligations hereunder, in connection with the offering,
issuance or sale of the Certificates hereunder or the consummation of the
transactions of the Company contemplated by this Agreement, except such as may
be required under the 1933 Act Regulations, the 1939 Act Regulations or state
securities or blue sky laws and except as has been or will be obtained prior to
the Closing Date and except for any documents permitted to be filed on Form 8-K
within 15 days after the Closing Date and any Computational Materials provided
to the Company in accordance with Section 9 herein.
(l) The Company has filed all federal, state, local and
foreign tax returns that are required to be filed or has duly requested
extensions thereof and has paid all taxes required to be paid by it and any
related assessments, fines or penalties, except for any such tax, assessment,
fine or penalty that is being contested in good faith and by appropriate
proceedings; and adequate charges, accruals and reserves have been provided for
in respect of all federal, state, local and foreign taxes for all periods as to
which the tax liability of the Company has not been finally determined or
remains open to examination by applicable taxing authorities.
(m) On the Closing Date, the Company (i) will have good and
marketable title to the Mortgage Loans being transferred by it to the Trust
pursuant thereto, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest placed thereon by the
Company (collectively, "Liens"), to the extent good and marketable title to the
Mortgage Loans is transferred to the Company, and (ii) will have the power and
authority to transfer such Mortgage Loans to the Trust, and upon execution and
delivery of the Pooling and Servicing Agreement by the Trust, the Trust will
have acquired ownership of all of the Company's right, title and interest in and
to the related Mortgage Loans.
(n) Any taxes, fee and other governmental charges in
connection with the execution, delivery and issuance of this Agreement, the
Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreements and the
Certificates payable by the Company (other than income taxes) have been paid or
will be paid at or prior to the Closing Time.
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 each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the applicable purchase price set
forth in a letter agreement dated as of even date herewith by and among the
Company and the Underwriters (the "Purchase Letter"), the respective portions of
each Class of the Offered Certificates set forth opposite such Underwriter's
name in Schedule I hereto, plus accrued interest on each such Class at the
related Pass-Through Rate from June 1, 1999 to but not including the Closing
Date.
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3. Delivery and Payment. (a) Delivery of and payment for the
Offered Certificates shall be made in the manner, on the date and at the time
specified in the Purchase Letter (or such later date not later than seven
business days after such specified date as the Underwriters shall designate),
which date and time may be postponed by agreement between the Underwriters and
the Company or as provided in Section 8 hereof (such date and time of delivery
and payment for the Offered Certificates being herein called the "Closing
Date"). Delivery of the Offered Certificates as set forth in the Purchase Letter
shall be made to the Underwriters for their respective accounts against payment
by wire transfer of immediately available funds by the several Underwriters of
the applicable purchase price as set forth in the Purchase Letter. Unless
delivery is made through the facilities of The Depository Trust Company, the
Offered Certificates shall be registered in such names and in such authorized
denominations as the Underwriters may request not less than 3 full business days
in advance of the Closing Date.
(b) The Company agrees to have the Offered Certificates
available for inspection, checking and packaging by the Underwriters in New
York, New York, not later than 1:00 P.M. on the business day prior to the
Closing Date.
4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Offered Certificates for sale to the public as
set forth in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will not file, on or prior to the Closing
Date, any amendment to the Registration Statement or file any supplement to
(including the supplement relating to the Offered Certificates included in the
Final Prospectus) the Basic Prospectus unless the Company has furnished to you a
copy 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 Final Prospectus to be transmitted to the
Commission for filing pursuant to Rule 424 under the 1933 Act. The Company will
promptly advise the Underwriters (i) when the Final Prospectus 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 for any amendment of the Registration
Statement or the Final Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement 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 Offered Certificates for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its reasonable 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 Offered
Certificates is required to be delivered under the 1933 Act, any event occurs as
a result of which the Final 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 Final Prospectus to comply with the 1933 Act or the rules and
regulations
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thereunder, the Company will promptly prepare and file with the Commission,
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 of the Registration Statement, will use its reasonable
best efforts to cause such amendment of the Registration Statement to be made
effective as soon as possible.
(c) The Company will (i) furnish to the Underwriters and
counsel for the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and each amendment thereto that shall
become effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer in connection with the Offered
Certificates may be required by the 1933 Act, as many copies of any Preliminary
Final Prospectus and the Final Prospectus and any amendments thereof and
supplements thereto as the Underwriters may reasonably request, and (ii) file
promptly all reports and any information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), subsequent to the
date of the Final Prospectus and for so long as the delivery of a prospectus by
an underwriter or dealer in connection with the Offered Certificates may be
required under the 1933 Act. The Company will file with the Commission within 15
days of the issuance of the Offered Certificates a report on Form 8-K setting
forth specific information concerning the Offered Certificates and the Mortgage
Pool to the extent that such information is not set forth in the Final
Prospectus.
(d) The Company agrees that, so long as the Offered
Certificates shall be outstanding, it will make available to the Underwriters
the annual statement as to compliance delivered to the Trustee pursuant to
Section 3.13 of the Pooling and Servicing Agreement and the annual statement of
a firm of independent public accountants furnished to the Trustee pursuant to
Section 3.14 of the Pooling and Servicing Agreement, as soon as such statements
are furnished to the Company. The Pooling and Servicing Agreement will provide
that the Servicer and the Special Servicer furnish to the Underwriters all
reports compiled by either of them pursuant to the Pooling and Servicing
Agreement under the same terms and conditions applicable to holders of the
Offered Certificates.
(e) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Certificates for sale under the laws of such jurisdictions as the
Underwriters may designate and will maintain such qualifications in effect so
long as required for the distribution of the Offered Certificates; provided,
however, that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so 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 so subject.
(f) The Company will pay, to the extent not paid by the
Mortgage Loan Sellers pursuant to the Mortgage Loan Purchase Agreements, all
costs and expenses in connection with the transactions herein contemplated,
including, but not limited to: (i) the fees and disbursements of its counsel;
(ii) the costs and expenses of printing (or otherwise reproducing) and
delivering the Pooling and Servicing Agreement and the Offered Certificates;
(iii) accounting fees and disbursements; (iv) the costs and expenses in
connection with the qualification or exemption of
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the Offered Certificates under state securities or blue sky laws not to exceed
$10,000, including filing fees and reasonable fees and disbursements of counsel
in connection with the preparation of any blue sky survey and in connection with
any determination of the eligibility of the Offered Certificates for investment
by institutional investors and the preparation of any legal investment survey;
(v) the expenses of printing any such blue sky survey and legal investment
survey; (vi) the costs and expenses in connection with the preparation, printing
and filing of the Registration Statement (including exhibits thereto), the Basic
Prospectus, the Preliminary Final Prospectus and the Final Prospectus, the
preparation and printing of this Agreement and the furnishing to the
Underwriters of such copies of each Preliminary Final Prospectus and Final
Prospectus as the Underwriters may reasonably request and (vii) the fees of each
Rating Agency (as defined herein). The Underwriters shall be responsible for
paying all costs and expenses incurred by them in connection with the offering
of the Offered Certificates.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Offered 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 after the
date hereof and prior to the Closing Date and as of the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) 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
threatened; and the Final Prospectus shall have been filed or transmitted for
filing with the Commission in accordance with Rule 424 under the 1933 Act.
(b) The Company shall have delivered to you a certificate of
the Company, signed by the Chairman, the President, a managing director, a vice
president or an assistant vice president of the Company and dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Registration Statement, the Final Prospectus and this Agreement and 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; (ii) the Company has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date; (iii) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened and (iv) nothing has come to the attention of
such officer that would lead such officer to believe that the Final Prospectus
contains any untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) The Underwriters shall have received from O'Melveny &
Myers LLP, special counsel for the Company, a favorable opinion, dated the
Closing Date and satisfactory in form and substance to counsel for the
Underwriters, to the effect that:
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(i) The Company is a corporation in good standing under the
laws of the State of Delaware with corporate power to enter into and perform its
obligations under this Agreement, the Mortgage Loan Purchase Agreements and the
Pooling and Servicing Agreement;
(ii) The Registration Statement and any amendments thereto
have become effective under the 1933 Act; to the 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 Final Prospectus and each amendment thereof or supplement thereto
as of their respective effective or issue dates 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 does not believe that the
Registration Statement (which, for purposes of this clause, shall not be deemed
to include any exhibits thereto or any documents or other information
incorporated therein by reference), or any amendment thereof, at the time it
became effective and at the date of this Agreement, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
that the Final Prospectus as of its issue date and as of the Closing Date, or as
amended or supplemented, as of the issue date of such amendment or supplement
and as of the Closing Date, contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(iii) This Agreement, the Pooling and Servicing Agreement and
the Mortgage Loan Purchase Agreements have been duly authorized, executed and
delivered by the Company and each such agreement constitutes a valid, legal and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as enforceability may be limited by (A) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or other
similar laws affecting the enforcement of the rights of creditors, (B) general
principles of equity, whether enforcement is sought in a proceeding in equity or
at law and (C) public policy considerations underlying the securities laws, to
the extent that such public policy considerations limit the enforceability of
the provisions of such agreements that purport to provide indemnification or
contribution from securities law liabilities;
(iv) The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement and paid for by the Underwriters as provided herein, will be entitled
to the benefits of the Pooling and Servicing Agreement;
(v) The statements in the Basic Prospectus and the Final
Prospectus, as the case may be, under the headings "Certain Federal Income Tax
Consequences" and "ERISA Considerations," to the extent that they constitute
matters of federal law or legal conclusions with respect thereto, are correct in
all material respects;
(vi) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act, and the Trust created by the Pooling
and Servicing Agreement is not required to be registered under the Investment
Company Act;
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(vii) No consent, approval, authorization or order of any New
York or federal court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated herein, except such
as may be required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Offered Certificates by the
Underwriters, and any recordation of the assignment of the Mortgage Loans to the
Trustee pursuant to the Pooling and Servicing Agreement that have not yet been
completed and such other approvals as have been obtained; and
(viii) Neither the issuance and sale or transfer of the
Certificates, nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof or of the Mortgage Loan
Purchase Agreements or the Pooling and Servicing Agreement 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 New York or federal statute or regulation applicable to the Company or,
to the knowledge of such counsel, any order of any New York or federal court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Company.
Such opinion may (x) 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, the
Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement, (y)
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the Company and
(z) be qualified as an opinion only on the federal laws of the United States of
America and the laws of the State of Delaware. Additionally, if so rendered,
O'Melveny & Myers LLP may rely on the opinion of in-house counsel for the
Company as to matters relating to the Company.
(d) The Underwriters shall have received from
PriceWaterhouseCoopers LLC (the "Accountant"), one or more letters, dated the
date hereof and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters.
(e) The Certificates have been given the rating, if any, set
forth in the Final Prospectus by Moody's Investors Services, Inc. ("Moody's")
and Fitch IBCA, Inc. ("Fitch IBCA" and, together with Moody's, the "Rating
Agencies").
(f) The Underwriters shall have received from counsel for the
Underwriters, dated the Closing Date, an opinion in form and substance
satisfactory to the Underwriters.
(g) The Underwriters shall have received from counsel for the
Trustee, a favorable opinion, dated the Closing Date, and in form and substance
satisfactory to the Underwriters and counsel for the Underwriters.
(h) The Underwriters shall have received from counsel for each
Mortgage Loan Seller, a favorable opinion, dated the Closing Date, in form and
substance satisfactory to the Underwriters and counsel for the Underwriters.
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(i) The Underwriters shall have received from counsel for each
of the Servicer and Special Servicer, a favorable opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriters and counsel for the
Underwriters.
(j) The Underwriters shall have received copies of any
opinions of counsel to the Company or each Mortgage Loan Seller supplied to the
Rating Agencies or the Trustee relating to certain matters with respect to the
Offered Certificates, the Mortgage Loan Sellers and the Mortgage Loans. Any such
opinions shall be dated the Closing Date and addressed to the Underwriters or
accompanied by the reliance letters to the Underwriters or shall state that the
Underwriters may rely upon them.
(k) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall be
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, and the Underwriters and counsel for the Underwriters shall have
received such further information, certificates and documents as they may
reasonably request.
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 mentioned above or elsewhere
in this Agreement shall not be in all material respects reasonably satisfactory
in form and substance to the Underwriters 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 the Underwriters. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
telegraph confirmed in writing.
7. Indemnification and Contribution. The Company and the several
Underwriters agree that:
(a) The Company will indemnify and hold harmless each
Underwriter, and each person who controls any Underwriter 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 or 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 Registration Statement or in any amendment thereof, or in the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or
in any amendment thereof or supplement thereto, or Pool Information contained in
any Structural Term Sheets or Collateral Term Sheets 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, in
the light of the circumstances under which they were made, not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein (a) in reliance upon and in conformity with any Underwriter
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Information (as defined in Section 9) or (b) arising out of or based upon the
failure of any Underwriter to comply with any provision of Section 9 hereof;
provided, further, however, that with respect to any untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration
Statement or in any amendment thereof, or in the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, the indemnity contained in
this subsection (a) shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, claims, damages or liabilities purchased
the Offered Certificates (or to the benefit of any person controlling such
Underwriter), to the extent that any such loss, claim, damage or liability of
such Underwriter or controlling person results from the fact that a copy of the
Basic Prospectus or the Final Prospectus correcting such misstatement or
omission and previously delivered to such Underwriter was not sent or given to
such person at or prior to the written confirmation of the sale of such Offered
Certificates to such person or from the fact that any amendment of or supplement
to the registration statement for the registration of the Offered Certificates,
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus
correcting such misstatement or omission and delivered to the Underwriters at
least 24 hours prior to the Closing Date was not sent or given to such person
prior to the settlement of the sale of the Offered Certificates to such person
(unless the Company shall have agreed that such amendment or supplement need not
be so sent or given). This indemnity agreement will be in addition to any
liability which the Company may otherwise have; provided, however, that the
Company shall not be liable to any Underwriter for losses of anticipated profits
from the transactions covered by this Agreement.
(b) Each Underwriter severally will indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person, if any, who controls the Company 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 the Company 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 (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or in any amendment
thereof, or in the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, or in any amendment thereof or supplement thereto, or any
Underwriter Information contained in an 8-K (containing Furnished Term Sheets or
Furnished Computational Materials) or 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 or (ii) the failure of such Underwriter or any member of
its selling group to comply with any provision of Section 9 hereof, and each
Underwriter agrees to reimburse each such indemnified party, as incurred, for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
but, in the case of clause (i) above, only with reference to written information
furnished to the Company by or on behalf of such Underwriter or any member of
its selling group, specifically for use in the Registration Statement, or in any
revision or amendment thereof, or supplement thereto, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, and, in
the case of clause (ii) above, only the Underwriter who failed to comply with
Section 9 hereof shall have the foregoing obligations for such failure, provided
however, that each such Underwriter shall have the foregoing obligations for any
such failure by any member of its
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selling group. This indemnity agreement will be in addition to any liability
that any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against 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 the indemnifying party from any liability which it may have to any
indemnified party (x) hereunder unless such failure to notify prejudices the
position of the indemnifying party or results in the loss of one or more
defenses to the related cause of action or (y) 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 reasonably 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 which 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 (and one local
counsel, if it deems so necessary) 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 any indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party for expenses incurred by the
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel and one local counsel,
approved by the Underwriters in the case of subsection (a), representing the
indemnified parties under subsection (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 in writing 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 be only in respect of the counsel referred
to in such clause (i) or (iii). The indemnifying party shall not be liable for
any settlement of any action effected without its prior written consent, which
consent shall not be unreasonably withheld, but if settled with such consent,
the indemnifying party shall indemnify the indemnified party from and against
any indemnifiable losses, claims, damages and liabilities by reason of such
settlement. No indemnifying party who has elected to assume the defense of such
action shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
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<PAGE>
(d) If the indemnification provided for in this Section 7
shall for any reason be unavailable in accordance with its terms to an
indemnified party under this Section 7, then the Company and each Underwriter,
to the extent of underwriting discounts and commissions received by it, shall
individually contribute to the amount paid or payable by such indemnified party
as a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above, in such proportion as is appropriate to reflect (i)
the relative benefits received by the Company, on the one hand, and each
Underwriter, on the other hand, from the offering of the Offered Certificates
(taking into account the portion of the proceeds of the offering realized by
each party) and (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 to reflect
the relative fault of the Company on the one hand and each Underwriter on the
other in connection with the statement or omission or failure to comply that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations (taking into account the parties' relative
knowledge and access to information concerning the matter with respect to which
the claim was asserted, the opportunity to correct and prevent any statement or
omission or failure to comply, and any other equitable consideration appropriate
under the circumstances). The relative benefits received by the Company on the
one hand and each Underwriter, including any member of its selling group (in
each case, as set forth on Schedule I), on the other shall be in such proportion
as the total net proceeds from the offering of the Offered Certificates (before
deducing expenses) received by the Company bear to the total underwriting
discounts and commissions received by each Underwriter, including any member of
its selling group, with respect to such offering. The relative fault 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 the respective
Underwriter, or any member of its selling group, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission or failure to comply. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were to be determined by per capita allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending against any action or claim which is the subject
of this subsection (d) subject to the limitations therein provided under
subsection (c). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Certificates underwritten and
distributed by it were offered to the public exceeds the amount of any damages
that such Underwriter has otherwise paid or become liable to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) or willful failure to comply with Section 9 hereof shall
be entitled to contribution from any person who was not also guilty of such
fraudulent misrepresentation or willful failure to comply. The Underwriters'
obligation in this subsection 7(d) to contribute shall be several in proportion
to their respective underwriting obligations and not joint.
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(e) Each Underwriter will indemnify and hold harmless any
other Underwriter and each person, if any, who controls such Underwriter within
the meaning of either the 1933 Act or the 1934 Act (collectively, the
"Non-Indemnifying Underwriter") from and against any and all losses, claims,
damages or liabilities, joint or several, to which any Non-Indemnifying
Underwriter becomes subject under the 1933 Act, the 1934 Act or other federal or
state statutory law or regulation or 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 (i) any untrue statement of material fact contained in any
computational or other written materials developed by, mailed or otherwise
transmitted by such indemnifying Underwriter or any member of its selling group,
in connection with the Offered Certificates or in any revision or amendment
thereof or supplement thereto or (ii) the failure of such indemnifying
Underwriter, or any member of its selling group, to comply with any provision of
Section 9 hereof, and agrees to reimburse each such Non-Indemnifying
Underwriter, as incurred for 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 that any Underwriter may otherwise have.
8. Default by an Underwriter. (a) If, on the Closing
Date, any Underwriter defaults in the performance of its obligations under this
Agreement, the nondefaulting Underwriters may make arrangements for the purchase
of the Offered Certificates which such defaulting Underwriter agreed but failed
to purchase by other persons satisfactory to the Company and the non-defaulting
Underwriters, but if no such arrangements are made within 36 hours after such
default, this Agreement shall terminate without liability on the part of the
non-defaulting Underwriters or the Company, except that the Company will
continue to be liable for the payment of expenses to the extent set forth in
Section 5(f) and except that the provisions of Sections 7 and 9 shall not
terminate and shall remain in effect. As used in this Agreement, the term
"Underwriters" includes, for all purposes of this Agreement unless the context
otherwise requires, any party not listed in Schedule I hereto that, pursuant to
this Section 8 purchases Offered Certificates which a defaulting Underwriter
agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company or any non-defaulting
Underwriter for damages caused by its default. If other persons are obligated or
agree to purchase the Offered Certificates of a defaulting Underwriter, either
the non-defaulting Underwriters or the Company may postpone the Closing Date for
up to seven full business days in order to effect any changes that in the
opinion of the counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement and/or the Final Prospectus or in any
other document or arrangement, and the Company agrees to promptly prepare any
amendment or supplement to the Registration Statement and/or the Final
Prospectus that effects any such changes.
9. Computational Materials and ABS Term Sheets.
(a) The parties acknowledge that, subsequent to the date on
which the Registration Statement became effective and up to and including the
date on which the Final Prospectus with respect to the Offered Certificates is
first made available to the Underwriters, the Underwriters, including any member
of its selling group, may furnish to various potential investors in Offered
Certificates, in writing: (i) "Computational Materials", as defined in a
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no-action letter (the "Kidder No-Action Letter") issued by the staff of the
Commission on May 20, 1994 to Kidder, Peabody Acceptance Corporation I, et al.,
as modified by a no-action letter (the "First PSA No-Action Letter") issued by
the staff of the Commission on May 27, 1994 to the Public Securities Association
(the "PSA") and as further modified by a no-action letter (the "Second PSA
No-Action Letter," and together with the Kidder No-Action Letter and the First
PSA No-Action Letter, the "No-Action Letters") issued by the staff of the
Commission on February 17, 1995 to the PSA; (ii) "Structural Term Sheets", as
defined in the Second PSA No-Action Letter and/or (iii) "Collateral Term
Sheets", as defined in the Second PSA No-Action Letter.
(b) In connection with the Offered Certificates, each
Underwriter shall furnish to the Company, at least one business day prior to the
time of filing of the Final Prospectus pursuant to Rule 424 under the 1933 Act,
all Computational Materials used by such Underwriter, or any member of its
selling group, and required to be filed with the Commission in order for such
Underwriter to avail itself of the relief granted in the No-Action Letters (such
Computational Materials, the "Furnished Computational Materials").
(c) In connection with the Offered Certificates, each
Underwriter shall furnish to the Company, at least one business day prior to the
time of filing of the Final Prospectus pursuant to Rule 424 under the Act, all
Structural Term Sheets prepared by such Underwriter, or any member of its
selling group for the Company with respect to the offering of the Offered
Certificates and required to be filed with the Commission in order for such
Underwriter to avail itself of the relief granted in the NoAction Letters (such
Structural Term Sheets, the "Furnished Structural Term Sheets").
(d) In connection with the Offered Certificates, each
Underwriter shall furnish to the Company, within one business day after the
first use thereof, all Collateral Term Sheets prepared by such Underwriter, or
any member of its selling group for the Company with respect to the offering of
the Offered Certificates, and required to be filed with the Commission in order
for such Underwriter to avail itself of the relief granted in the No-Action
Letters (such Collateral Term Sheets, the "Furnished Collateral Term Sheets" and
together with the Furnished Structured Term Sheets, the "Furnished Term Sheets")
and shall advise the Company of the date on which each such Collateral Term
Sheet was first used.
(e) The Company shall cause to be filed with the Commission
one or more current reports on Form 8-K (collectively, together with any
amendments and supplements thereto, the "8-Ks," and each an "8-K") with respect
to all Furnished Computational Materials, Structural Term Sheets and Collateral
Term Sheets used by it or any member of its selling group (pro rating the costs
and expenses thereof in a manner agreed to by the Underwriters) such that such
Underwriter may avail itself of the relief granted in the No-Action Letters. In
particular, the Company shall cause to be filed with the Commission (i) all of
the Furnished Computational Materials and all of the Furnished Structural Term
Sheets on an 8-K prior to or concurrently with the filing of the Final
Prospectus with respect to the Offered Certificates pursuant to Rule 424 under
the 1933 Act; and (ii) all of its Furnished Collateral Term Sheets on an 8-K not
later than 2 business days after the first use thereof.
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(f) Each Underwriter represents and warrants to, and covenants
with, the Company that as presented in any Furnished Term Sheets, the
Underwriter Information (defined below) is not misleading and not inaccurate in
any material respect and that any Pool Information (defined below) contained in
any Furnished Term Sheets prepared by it which is not otherwise inaccurate in
any material respect is not presented in such Furnished Term Sheets prepared by
it in a way that is either misleading or inaccurate in any material respect.
Each Underwriter further covenants with the Company that if any Computational
Materials or ABS Term Sheets (as such term is defined in the Second PSA
No-Action Letter) contained in any Furnished Term Sheets are found to include
any information that is misleading or inaccurate in any material respect, such
Underwriter promptly shall inform the Company of such finding, provide the
Company with revised and/or corrected Computational Materials or ABS Term
Sheets, as the case may be, in order to remit to the Company to cause to be
delivered for filing to the Commission in accordance herewith, an 8-K containing
such revised and/or corrected Computational Materials or ABS Term Sheets, as the
case may be and such other information as may be necessary in order to permit
the Company to fulfill its obligations under Section 5(b).
(g) Each Underwriter covenants that all Computational
Materials and ABS Term Sheets used by it shall contain the following legend or
such other legend as typically used by the Underwriter:
PROSPECTIVE INVESTORS ARE ADVISED TO READ CAREFULLY, AND
SHOULD RELY SOLELY ON, THE INFORMATION CONTAINED IN THE FINAL
PROSPECTUS SUPPLEMENT TO THE PROSPECTUS DATED MARCH 25, 1999
RELATING TO CERTAIN CLASSES OF CERTIFICATES REFERRED TO ABOVE
(THE "CERTIFICATES") IN MAKING THEIR INVESTMENT DECISION.
THE INFORMATION CONTAINED HERE SHOULD BE REVIEWED ONLY IN
CONJUNCTION WITH A CAREFUL REVIEW OF SUCH PROSPECTUS
SUPPLEMENT AND PROSPECTUS. SUCH INFORMATION DOES NOT INCLUDE
ANY INFORMATION RELATING TO THE STRUCTURE OF THE CERTIFICATES
AND DOES NOT INCLUDE ALL RELEVANT INFORMATION RELATING TO THE
UNDERLYING MORTGAGE LOANS. PARTICULAR ATTENTION SHOULD BE PAID
TO THE RISKS AND SPECIAL CONSIDERATIONS ASSOCIATED WITH AN
INVESTMENT IN THE CERTIFICATES DESCRIBED IN SUCH PROSPECTUS
SUPPLEMENT AND PROSPECTUS. THE INFORMATION CONTAINED IN THIS
EXHIBIT SHOULD NOT BE VIEWED AS PROJECTIONS, FORECASTS,
PREDICTIONS OR OPINIONS WITH RESPECT TO VALUE.
ANY INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR
AMENDMENT. FURTHERMORE, ANY INFORMATION CONTAINED HEREIN WILL
BE MORE
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FULLY DESCRIBED IN THE FINAL PROSPECTUS SUPPLEMENT AND
PROSPECTUS, AND SUCH INFORMATION CONTAINED HEREIN WILL BE
FULLY SUPERSEDED THEREBY. PRIOR TO MAKING ANY INVESTMENT
DECISION, A PROSPECTIVE INVESTOR SHOULD RECEIVE AND CAREFULLY
REVIEW SUCH PROSPECTUS SUPPLEMENT AND PROSPECTUS.
NOTHING HEREIN SHOULD BE CONSIDERED AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY THE CERTIFICATES.
(h) Each Underwriter covenants that all Collateral Term Sheets
not otherwise prepared by or on behalf of the Company (other than the initial
Collateral Term Sheet) used by it shall contain the following additional legend:
"THE INFORMATION CONTAINED HEREIN SUPERSEDES THE
INFORMATION IN ALL PRIOR COLLATERAL TERM SHEETS, IF ANY."
(i) For purposes of this Agreement, the term "Underwriter
Information" means any written information furnished to the Company by either
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or any Preliminary Final Prospectus or Final Prospectus or such
portion, if any, of the information contained in any Furnished Term Sheets that
is not Pool Information or Prospectus Information; provided, however, that
information contained in Furnished Term Sheets that is not Pool Information or
Prospectus Information shall not constitute Underwriter Information to the
extent such information is inaccurate or misleading in any material respect as a
result of it being based on Pool Information or Prospectus Information that is
inaccurate or misleading in any material respect. "Pool Information" means the
information furnished to the Underwriters by the Company regarding the Mortgage
Loans and "Prospectus Information" means the information contained in (but not
incorporated by reference in) any Preliminary Final Prospectus or Final
Prospectus; provided, however, that if any information that would otherwise
constitute Pool Information or Prospectus Information is presented in any
Furnished Term Sheets in a way that is either inaccurate or misleading in any
material respect, such information shall not be Pool Information or Prospectus
Information.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Underwriters, by notice given to the Company
prior to delivery of and payment for all Certificates if prior to such time (i)
trading in securities generally on the New York Stock Exchange or the American
Stock Exchange shall have been suspended or materially limited, (ii) a general
moratorium on commercial banking activities in New York shall have been declared
by either federal or New York State authorities or (iii) there shall have
occurred any outbreak or material escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis, the
effect of which on the financial markets of the United States is such as to make
it, in the reasonable judgment of the Underwriters, impracticable to market the
Offered Certificates on the terms specified herein.
18
<PAGE>
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Offered Certificates. The
provisions of Section 7 hereof shall survive the termination or cancellation of
this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
hand delivered or sent by facsimile transmission and confirmed to them at, in
the case of PaineWebber Inc., to it at 1285 Avenue of the Americas, 19th Floor,
New York, New York 10019, Attention: Jack A. Taylor, Managing Director, fax
number (212) 713-8606, in the case of Merrill Lynch, Pierce, Fenner & Smith
Inc., to it at World Financial Center, New York, New York 10281, Attention:
Michael McGovern, fax number (212) 449-0265; or, if sent to the Company, will be
mailed, hand delivered or sent by facsimile transmission and confirmed to it at
PaineWebber Mortgage Acceptance Corporation V, 1285 Avenue of the Americas, 19th
Floor, New York, New York 10019, Attention: Steven J. Plust, fax number (212)
713-8606.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York. 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.
[Signature Page Follows]
19
<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
and the several Underwriters.
Very truly yours,
PAINEWEBBER MORTGAGE ACCEPTANCE
CORPORATION V
By: /s/ Steven J. Plust
------------------------------------
Name: Steven J. Plust
Title: Managing Director
S-1
<PAGE>
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
PAINEWEBBER INCORPORATED
By: /s/ Steven J. Plust
-----------------------------
Name: Steven J. Plust
Title: Managing Director
S-2
<PAGE>
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By: /s/ Andrea Balkan
------------------------------
Name: Andrea Balkan
Title: Director
S-3
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
MERRILL LYNCH, PIERCE, FENNER & SMITH
CLASS PAINEWEBBER INCORPORATED INCORPORATED
---------- -------------------------------- -------------------------------------
<S> <C> <C>
Class A-1 $102,000,000 $ 51,627,000
Class A-2 $237,000,000 $120,327,000
Class B $ 23,238,000 $ 12,000,000
Class C $ 25,000,000 $ 12,000,000
Class D $ 22,000,000 $ 11,476,000
Class X $467,764,602 $237,000,000
</TABLE>
I-1
<PAGE>
==============================================================================
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
DEPOSITOR
BANC ONE MORTGAGE CAPITAL MARKETS, LLC
SERVICER
BANC ONE MORTGAGE CAPITAL MARKETS, LLC
SPECIAL SERVICER
LASALLE BANK NATIONAL ASSOCIATION
TRUSTEE
AND
ABN AMRO BANK N.V.
FISCAL AGENT
POOLING AND SERVICING AGREEMENT
DATED AS OF JUNE 1, 1999
$704,764,602
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1
==============================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
PAGE
SECTION 1.01.Defined Terms....................................................3
SECTION 1.02.Certain Calculations............................................51
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01.Conveyance of Mortgage Loans....................................52
SECTION 2.02.Acceptance by Trustee...........................................55
SECTION 2.03.Representations, Warranties and Covenants of the Depositor;
Mortgage Loan Sellers' Repurchase of Mortgage Loans for
Defects in Mortgage Files and Breaches of Representations and
Warranties......................................................56
SECTION 2.04.Execution of Certificates.......................................59
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01.Servicer to Act as Servicer; Special Servicer to Act as
Special Servicer; Administration of the Mortgage Loans..........59
SECTION 3.02.Collection of Payments..........................................61
SECTION 3.03.Collection of Taxes, Assessments and Similar Items;
Servicing Accounts..............................................62
SECTION 3.04.The Certificate Account, the Excess Interest Distribution
Account and the Lower-Tier and Upper-Tier Distribution
Accounts........................................................64
SECTION 3.05.Permitted Withdrawals From the Certificate Account and the
Distribution Accounts...........................................67
SECTION 3.06.Investment of Funds in the Certificate Account, Policy Escrow
Accounts or REO Accounts........................................71
SECTION 3.07.Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage...............................................72
SECTION 3.08.Enforcement of Due-On-Sale Clauses; Assumption Agreements.......76
SECTION 3.09.Realization Upon Defaulted Mortgage Loans.......................78
SECTION 3.10.Trustee to Cooperate; Release of Mortgage Files.................81
SECTION 3.11.Servicing Compensation; Excess Fixed Yield......................82
SECTION 3.12.Inspections; Collection of Financial Statements.................85
SECTION 3.13.Annual Statement as to Compliance...............................87
SECTION 3.14.Reports by Independent Public Accountants.......................87
SECTION 3.15.Access to Certain Information...................................88
SECTION 3.16.Title to REO Property; REO Account..............................88
SECTION 3.17.Management of REO Property......................................89
-i-
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 3.18.Sale of Defaulted Mortgage Loans and REO Properties.............92
SECTION 3.19.[Intentionally Omitted].........................................94
SECTION 3.20.Modifications, Waivers, Amendments and Consents.................94
SECTION 3.21.Transfer of Servicing Between Servicer and Special Servicer;
Record Keeping; Asset Status Report.............................98
SECTION 3.22.Sub-Servicing Agreements.......................................101
SECTION 3.23.Representations and Warranties of the Servicer.................103
SECTION 3.24.Representations and Warranties of the Special Servicer.........105
SECTION 3.25.Interest Reserve Account.......................................107
SECTION 3.26.Action Upon Receipt of Notice of Residual Value Policy
Termination Event or Lease Enhancement Policy Termination
Event..........................................................107
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01.Distributions..................................................109
SECTION 4.02.Statements to Certificateholders; CSSA Standard
Information Package............................................117
SECTION 4.03.P&I Advances...................................................123
SECTION 4.04.Allocation of Collateral Support Deficit.......................124
SECTION 4.05.Appraisal Reductions...........................................125
SECTION 4.06.Certificate Deferred Interest..................................125
ARTICLE V
THE CERTIFICATES
SECTION 5.01.The Certificates...............................................126
SECTION 5.02.Registration of Transfer and Exchange of Certificates..........128
SECTION 5.03.Book-Entry Certificates........................................135
SECTION 5.04.Mutilated, Destroyed, Lost or Stolen Certificates..............138
SECTION 5.05.Persons Deemed Owners..........................................138
SECTION 5.06.Appointment of Paying Agent....................................138
ARTICLE VI
THE DEPOSITOR, THE SERVICER AND THE SPECIAL SERVICER
SECTION 6.01.Liability of the Depositor, the Servicer and the Special
Servicer.......................................................139
SECTION 6.02.Merger, Consolidation or Conversion of the Depositor, the
Servicer or the Special Servicer...............................139
SECTION 6.03.Limitation on Liability of the Depositor, the Servicer, the
Special Servicer...............................................139
SECTION 6.04.Depositor, Servicer and Special Servicer Not to Resign.........141
-ii-
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 6.05.Rights of the Depositor in Respect of the Servicer and the
Special Servicer...............................................141
ARTICLE VII
DEFAULT
SECTION 7.01.Events of Default; Servicer and Special Servicer Termination...142
SECTION 7.02.Trustee to Act; Appointment of Successor.......................145
SECTION 7.03.Notification to Certificateholders.............................146
SECTION 7.04.Waiver of Events of Default....................................146
SECTION 7.05.Trustee and Fiscal Agent as Makers of Advances.................146
ARTICLE VIII
CONCERNING THE TRUSTEE AND FISCAL AGENT
SECTION 8.01.Duties of Trustee..............................................147
SECTION 8.02.Certain Matters Affecting the Trustee..........................148
SECTION 8.03.Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans..................150
SECTION 8.04.Trustee and Fiscal Agent May Own Certificates..................150
SECTION 8.05.Payment of Trustee's Fees; Indemnification of Trustee..........150
SECTION 8.06.Eligibility Requirements for Trustee...........................151
SECTION 8.07.Resignation and Removal of the Trustee and the Fiscal Agent....152
SECTION 8.08.Successor Trustee and Fiscal Agent.............................153
SECTION 8.09.Merger or Consolidation of Trustee or Fiscal Agent.............154
SECTION 8.12.Appointment of Custodians......................................156
SECTION 8.13.Access to Certain Information..................................156
SECTION 8.14.Representations and Warranties of the Trustee and the
Fiscal Agent...................................................158
ARTICLE IX
TERMINATION
SECTION 9.01.Termination Upon Repurchase or Liquidation of All
Mortgage Loans.................................................161
SECTION 9.02.Additional Termination Requirements............................163
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01.REMIC Administration..........................................164
SECTION 10.02.Depositor, Special Servicer, Paying Agent and Trustee to
Cooperate with Servicer.......................................167
-iii-
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 10.03.Use of Agents.................................................167
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01.Amendment.....................................................168
SECTION 11.02.Recordation of Agreement; Counterparts........................170
SECTION 11.03.Limitation on Rights of Certificateholders....................170
SECTION 11.04.Governing Law.................................................171
SECTION 11.05.Notices.......................................................171
SECTION 11.06.Severability of Provisions....................................172
SECTION 11.07.Confirmation of Intent: Grant of a Security Interest..........172
SECTION 11.08.Successors and Assigns; Beneficiaries.........................173
SECTION 11.09.Article and Section Headings..................................173
SECTION 11.10.Notices to the Rating Agencies................................173
-iv-
<PAGE>
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class B Certificate
Exhibit A-4 Form of Class C Certificate
Exhibit A-5 Form of Class D Certificate
Exhibit A-6 Form of Class E Certificate
Exhibit A-7 Form of Class F Certificate
Exhibit A-8 Form of Class G Certificate
Exhibit A-9 Form of Class H Certificate
Exhibit A-10 Form of Class I Certificate
Exhibit A-13 Form of Class X Certificate
Exhibit A-14 Form of Class R Certificate
Exhibit A-15 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E [Intentionally Omitted]
Exhibit F Form of Request for Release
Exhibit G Form of ERISA Representation Letter
Exhibit H Form of Distribution Date Statement
Exhibit I-1 Form of Comparative Financial Status Report
Exhibit I-2 Form of Delinquent Loan Status Report
Exhibit I-3 Form of Historical Loan Modification Report
Exhibit I-4 Form of Historical Loss Estimate Report
Exhibit I-5 Form of REO Status Report
Exhibit I-6 Form of Watch List Report
Exhibit I-7 Form of Operating Statement Analysis Report
Exhibit I-8 Form of NOI Adjustment Worksheet
Exhibit I-9 Form of CSSA Loan Set-up File
Exhibit I-10 Form of CSSA Periodic Loan Update File
Exhibit I-11 Form of CSSA Property File
SCHEDULES
Schedule 1 Mortgage Loans Containing Additional Debt
Schedule 2 [Reserved]
Schedule 3 Mortgage Loans Without Defeasance Provisions
Schedule 4 Interest Reserve Loans
Schedule 5 IDOT Loans
Schedule 6 CTL Loans
Schedule 7 30/360 Mortgage Loans
-v-
<PAGE>
This Pooling and Servicing Agreement (the "Agreement"), is dated and
effective as of June 1, 1999 by and among PAINEWEBBER MORTGAGE ACCEPTANCE
CORPORATION V, as Depositor, BANC ONE MORTGAGE CAPITAL MARKETS, LLC, as
Servicer, BANC ONE MORTGAGE CAPITAL MARKETS, LLC, as Special Servicer, LASALLE
BANK NATIONAL ASSOCIATION, as Trustee and ABN AMRO BANK N.V., as Fiscal Agent
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial 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 the trust fund (the "Trust Fund") to be
created hereunder, the primary assets of which will be a pool of commercial,
multifamily, industrial, health-care related, hospitality, manufactured housing
community and credit tenant lease mortgage loans (the "Mortgage Loans"). Banc
One Mortgage Capital Markets, LLC ("Banc One") is purchasing the initial right
to be the Servicer and Special Servicer of the Mortgage Loans pursuant to a
Servicing Rights Purchase Agreement dated as of June 1, 1999 (the "Servicing
Rights Purchase Agreement"), by and between Depositor, as Seller, and Banc One
Mortgage Capital Markets, LLC, as Purchaser. The Depositor has irrevocably
assigned to Banc One a fixed percentage of the interest on each Mortgage Loan
(except for three Mortgage Loans identified as ML-146, ML-147 and ML-148)
(defined herein as "Excess Fixed Yield"). As provided herein, the Trustee shall
elect or shall cause an election to be made that each of the Upper-Tier REMIC
and the Lower-Tier REMIC be treated for federal income tax purposes as a real
estate mortgage investment conduit (a "REMIC").
The following table sets forth the designation, the initial
pass-through rate (the "Pass-Through Rate"), the aggregate initial principal
amount (the "Original Certificate Balance") or Notional Amount ("Original
Notional Amount"), as applicable, and the initial ratings given each Class by
the Rating Agencies (the "Original Ratings") for each Class of Certificates
comprising the interests in the Upper-Tier REMIC created hereunder:
[ Next Page is Page 2 ]
1
<PAGE>
UPPER-TIER REMIC
<TABLE>
<CAPTION>
Class Initial Pass- Original
Designation Through Rate (1) Certificate Balance Original Rating (2)
- ----------- ---------------- ------------------- -------------------
<S> <C> <C> <C>
Class A-1 6.48% $153,627,000 Aaa/AAA
Class A-2 6.82% $357,327,000 Aaa/AAA
Class B 6.98% $35,238,000 Aa2/AA
Class C 7.10% $37,000,000 A2/A
Class D 7.15% $33,476,000 Baa2/BBB
Class E 7.15% $8,809,000 Baa3/BBB-
Class F 6.00% $35,238,000 Ba2/NR
Class G 6.00% $24,666,000 B2/NR
Class H 6.00% $7,400,000 B3/NR
Class I 6.00% $11,983,602 NR/NR
Class X (3) (4) Aaa/AAA
Class R None (5) N/A/N/A
</TABLE>
(1) THE PASS-THROUGH RATE OF EACH CLASS OF THE CLASS B, CLASS C, CLASS D, CLASS
E, CLASS F, CLASS G, CLASS H AND CLASS I CERTIFICATES FOR ANY DISTRIBUTION
DATE WILL EQUAL THE LESSER OF (I) THE INDICATED FIXED RATE PER ANNUM FOR
SUCH CLASS AND (II) THE WEIGHTED AVERAGE FOR SUCH DISTRIBUTION DATE OF THE
MORTGAGE RATES OF THE MORTGAGE LOANS, NET OF THE RELATED SERVICING FEE RATE,
AS MORE FULLY DESCRIBED IN "DESCRIPTION OF THE CERTIFICATES-GENERAL" HEREIN.
(2) MOODY'S INVESTORS SERVICE, INC. AND FITCH IBCA INC.
(3) THE CLASS X PASS-THROUGH RATE SHALL HAVE THE MEANING ASSIGNED THERETO HEREIN
AND IS THE EQUIVALENT OF THE WEIGHTED AVERAGE OF THE PASS-THROUGH RATES OF
THE A-1 COMPONENT, THE A-2 COMPONENT, THE B COMPONENT, THE C COMPONENT, THE
D-E COMPONENT AND THE F-I COMPONENT, WEIGHTED, IN EACH CASE, ON THE BASIS OF
THEIR RESPECTIVE NOTIONAL AMOUNTS IMMEDIATELY PRIOR TO SUCH DISTRIBUTION
DATE. THE PASS-THROUGH RATE FOR THE A-1 COMPONENT FOR ANY DISTRIBUTION DATE
WILL EQUAL THE EXCESS, IF ANY, OF THE WEIGHTED AVERAGE NET MORTGAGE RATE
OVER THE CLASS A-1 PASS-THROUGH RATE. THE PASS-THROUGH RATE FOR THE A-2
COMPONENT FOR ANY DISTRIBUTION DATE WILL EQUAL THE EXCESS, IF ANY, OF THE
WEIGHTED AVERAGE NET MORTGAGE RATE OVER THE CLASS A-2 PASS-THROUGH RATE. THE
PASS-THROUGH RATE FOR THE B COMPONENT FOR ANY DISTRIBUTION DATE WILL EQUAL
THE EXCESS, IF ANY, OF THE WEIGHTED AVERAGE NET MORTGAGE RATE OVER THE CLASS
B PASS-THROUGH RATE. THE PASS-THROUGH RATE FOR THE C COMPONENT FOR ANY
DISTRIBUTION DATE WILL EQUAL THE EXCESS, IF ANY, OF THE WEIGHTED AVERAGE NET
MORTGAGE RATE OVER THE CLASS C PASS-THROUGH RATE. THE PASS-THROUGH RATE FOR
THE D-E COMPONENT FOR ANY DISTRIBUTION DATE WILL EQUAL THE EXCESS, IF ANY,
OF THE WEIGHTED AVERAGE NET MORTGAGE RATE OVER THE WEIGHTED AVERAGE OF THE
CLASS D PASS THROUGH RATE AND THE CLASS E PASS-THROUGH RATE, WEIGHTED ON THE
BASIS OF THE RESPECTIVE CERTIFICATE BALANCES OF SUCH CLASSES IMMEDIATELY
PRIOR TO SUCH DISTRIBUTION DATE. THE PASS-THROUGH RATE FOR THE F-I COMPONENT
FOR ANY DISTRIBUTION DATE WILL EQUAL THE EXCESS, IF ANY, OF THE WEIGHTED
AVERAGE NET MORTGAGE RATE OVER THE WEIGHTED AVERAGE OF THE CLASS F
PASS-THROUGH RATE, THE CLASS G PASS-THROUGH RATE, THE CLASS H PASS-THROUGH
RATE AND THE CLASS I PASS-THROUGH RATE, WEIGHTED ON THE BASIS OF THE
RESPECTIVE CERTIFICATE BALANCES OF SUCH CLASSES IMMEDIATELY PRIOR TO SUCH
DISTRIBUTION DATE. THE RATE AT WHICH THE CLASS X CERTIFICATES WILL BEAR
INTEREST FOR THE FIRST DISTRIBUTION DATE IS EXPECTED TO BE APPROXIMATELY
0.5994% PER ANNUM.
(4) THE CLASS X CERTIFICATES WILL NOT HAVE A CERTIFICATE BALANCE AND WILL NOT BE
ENTITLED TO RECEIVE DISTRIBUTIONS OF PRINCIPAL. THE NOTIONAL AMOUNT OF THE
A-1 COMPONENT, THE A-2 COMPONENT, THE B COMPONENT AND THE C COMPONENT,
RESPECTIVELY, IS EQUAL TO THE LOWER-TIER PRINCIPAL AMOUNT OF THE CLASS LA-1
UNCERTIFICATED INTEREST, THE CLASS LA-2 UNCERTIFICATED INTEREST, THE CLASS
LB UNCERTIFICATED INTEREST AND THE CLASS LC UNCERTIFICATED INTEREST,
RESPECTIVELY, AS OF THE PRECEDING DISTRIBUTION DATE (AFTER GIVING EFFECT TO
THE DISTRIBUTION OF PRINCIPAL AND ALLOCATION OF COLLATERAL SUPPORT DEFICIT
ON SUCH DISTRIBUTION DATE) OR IN THE CASE OF THE FIRST DISTRIBUTION DATE,
THE ORIGINAL LOWER-TIER PRINCIPAL AMOUNT OF THE CLASS LA-1 UNCERTIFICATED
INTEREST, THE CLASS LA-2 UNCERTIFICATED INTEREST, THE CLASS LB
UNCERTIFICATED INTEREST AND THE CLASS LC UNCERTIFICATED INTEREST,
RESPECTIVELY. THE NOTIONAL AMOUNT OF THE D-E COMPONENT IS AN AMOUNT EQUAL TO
THE SUM OF (A) THE LOWER-TIER PRINCIPAL AMOUNT OF THE CLASS LD
UNCERTIFICATED INTEREST AND (B) THE LOWER-TIER PRINCIPAL AMOUNT OF THE CLASS
LE UNCERTIFICATED INTEREST, IN EACH CASE AS OF THE PRECEDING DISTRIBUTION
DATE (IN EACH CASE AFTER GIVING EFFECT TO THE DISTRIBUTION OF PRINCIPAL AND
ALLOCATION OF COLLATERAL SUPPORT DEFICIT ON SUCH DISTRIBUTION DATE). THE
NOTIONAL AMOUNT OF THE F-I COMPONENT FOR ANY DISTRIBUTION DATE WILL BE EQUAL
TO (I) THE LOWER-TIER PRINCIPAL AMOUNT OF THE CLASS LF UNCERTIFICATED
INTEREST, (II) THE LOWER-TIER PRINCIPAL AMOUNT OF THE CLASS LG
UNCERTIFICATED INTEREST, (III) THE LOWER-TIER PRINCIPAL AMOUNT OF THE CLASS
LH UNCERTIFICATED INTEREST AND, (IV) THE LOWER-TIER PRINCIPAL AMOUNT OF THE
CLASS LI UNCERTIFICATED INTEREST, RESPECTIVELY, AS OF THE PRECEDING
DISTRIBUTION DATE (IN EACH CASE AFTER GIVING EFFECT TO THE DISTRIBUTION OF
PRINCIPAL AND ALLOCATION OF COLLATERAL SUPPORT DEFICIT ON SUCH DISTRIBUTION
DATE). THE ORIGINAL NOTIONAL AMOUNT OF THE A-1 COMPONENT IS $153,627,000.
THE ORIGINAL NOTIONAL AMOUNT OF THE A-2 COMPONENT IS $357,327,000. THE
ORIGINAL NOTIONAL AMOUNT OF THE B COMPONENT IS $35,238,000. THE ORIGINAL
NOTIONAL AMOUNT OF THE C COMPONENT IS $37,000,000. THE ORIGINAL NOTIONAL
AMOUNT OF THE D-E COMPONENT IS $42,285,000. THE ORIGINAL NOTIONAL AMOUNT OF
THE F-I COMPONENT IS $79,287,602.
(5) THE CLASS R CERTIFICATES DO NOT HAVE A CERTIFICATE BALANCE OR NOTIONAL
AMOUNT, DO NOT BEAR INTEREST AND WILL NOT BE ENTITLED TO DISTRIBUTIONS OF
PREPAYMENT PREMIUMS OR YIELD MAINTENANCE CHARGES. ANY AVAILABLE DISTRIBUTION
AMOUNT REMAINING IN THE UPPER-TIER DISTRIBUTION ACCOUNT, AFTER ALL REQUIRED
DISTRIBUTIONS UNDER THIS AGREEMENT HAVE BEEN MADE TO EACH OTHER CLASS OF
CERTIFICATES, WILL BE DISTRIBUTED TO THE HOLDERS OF THE CLASS R
CERTIFICATES.
The Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class I and Class X Certificates will evidence "regular
interests" in the Upper-Tier REMIC created hereunder. The sole Class of
"residual interests" in the Upper-Tier REMIC
2
<PAGE>
created hereunder will be evidenced by the Class R Certificates. The Class LA-1,
Class LA-2, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH
and Class LI Uncertificated Interests will evidence "regular interests" in the
Lower-Tier REMIC created hereunder. The sole Class of "residual interests" in
the Lower-Tier REMIC created hereunder will be evidenced by the Class LR
Certificates.
Each Uncertificated Lower-Tier Interest has a Lower-Tier Principal
Amount equal to the Certificate Balance of the corresponding Class of Regular
Certificates and, in the case of the first Distribution Date, each Lower-Tier
Interest has an Original Lower-Tier Principal Amount equal to the Original
Certificate Balance of the corresponding Class of Regular Certificates. The
interest rate of each Uncertificated Lower-Tier Interest (other than Class LR)
during each Interest Accrual Period will be the Weighted Average Net Mortgage
Rate of the Mortgage Loans based on their Stated Principal Balances as of the
Distribution Date occurring during such Interest Accrual Period after giving
effect to all distributions made on that Distribution Date.
The Class LR Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Prepayment Premiums or Yield Maintenance Charges. Any Available Distribution
Amount remaining in the Lower-Tier Distribution Account after distributing the
Lower-Tier Distribution Amount shall be distributed to the Holders of the Class
LR Certificates (but only to the extent of the Available Distribution Amount for
such Distribution Date remaining in the Lower-Tier Distribution Account, if
any).
As of the close of business on the Cut-off Date, the Mortgage Loans had
an aggregate principal balance, after application of all payments of principal
due on or before such date, whether or not received, approximately equal to
$704,764,602.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Special Servicer, the Fiscal Agent 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.
"A-1 Component": One of the six components comprising the Class X
Certificates, representing a "specified portion" (within the meaning of Treasury
Regulations Section 1.860G-1(a)(2)(i)(C)) of the interest payments on the Class
LA-1 Uncertificated Interest.
"A-1 Component Interest Accrual Amount": With respect to each
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period, at the A-1 Component Pass-Through Rate, on the A-1
Notional Amount outstanding immediately prior to such Distribution Date.
3
<PAGE>
"A-1 Component Pass-Through Rate": With respect to any Distribution
Date, the excess, if any, of (i) the Weighted Average Net Mortgage Rate over
(ii) the Class A-1 Pass-Through Rate.
"A-1 Notional Amount": With respect to any date of determination, an
amount equal to the Lower-Tier Principal Amount of the Class LA-1 Uncertificated
Interest as of the preceding Distribution Date (after giving effect to the
distribution of principal and allocation of Collateral Support Deficit on such
preceding Distribution Date), or the Cut-off Date in the case of the first
Distribution Date.
"A-2 Component": One of the six components comprising the Class X
Certificates, representing a "specified portion" (within the meaning of Treasury
Regulations Section 1.860G-1(a)(2)(i)(C)) of the interest payments on the Class
LA-2 Uncertificated Interest.
"A-2 Component Interest Accrual Amount": With respect to each
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the A-2 Component Pass-Through Rate, on the A-2
Notional Amount outstanding immediately prior to such Distribution Date.
"A-2 Component Pass-Through Rate": With respect to any Distribution
Date, the excess, if any, of (i) the Weighted Average Net Mortgage Rate over
(ii) the Class A-2 Pass-Through Rate.
"A-2 Notional Amount": With respect to any date of determination, an
amount equal to the Lower-Tier Principal Amount of the Class LA-2 Uncertificated
Interest as of the preceding Distribution Date (after giving effect to the
distribution of principal and allocation of Collateral Support Deficit on such
preceding Distribution Date), or the Cut-off Date in the case of the first
Distribution Date.
"Accrued Certificate Interest": (a) With respect to each Distribution
Date and each Class of Certificates (other than the Class X Certificates and the
Residual Certificates), an amount equal to interest accrued during the related
Interest Accrual Period at the Pass-Through Rate applicable to such Class of
Certificates for such Distribution Date, on the related Certificate Balance of
such Class outstanding immediately prior to such Distribution Date (i.e., such
Certificate Balance is to be used for accrual of interest during the related
Interest Accrual Period notwithstanding the fact that such Certificate Balance
may be different than the actual Certificate Balance at the start of such
Interest Accrual Period); (b) with respect to each Distribution Date and the
Class X Certificates, the Class X Interest Accrual Amount. Accrued Certificate
Interest shall be calculated on the basis of a 360-day year consisting of twelve
30-day months.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in
the Mortgage Loan Schedule.
"Additional Debt": With respect to any Mortgage Loan, any debt owed by
the related Mortgagor to a party other than the lender (such party may be an
Affiliate of such lender) under such Mortgage Loan as of the Closing Date as set
forth on Schedule 1 hereto, as increased or decreased from time to time pursuant
to the terms of the related subordinate loan documents (including any
subordination agreements).
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"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(d)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Anticipated Repayment Date": With respect to any Mortgage Loan that is
indicated on the Mortgage Loan Schedule as having a Revised Rate, the date upon
which such Mortgage Loan commences accruing interest at such Revised Rate.
"Appraisal": An appraisal prepared by an Independent Appraiser with at
least five years experience in properties of like kind and in the same area
reasonably acceptable to the Servicer or Special Servicer, as applicable,
prepared in accordance with 12 C.F.R. 225.64, or, in connection with an
Appraisal Reduction, an appraisal meeting the requirements of clause (b)(i)(A)
or (b)(i)(B) in the definition of Appraisal Reduction.
"Appraisal Reduction": For any Distribution Date and for any Mortgage
Loan as to which an Appraisal Reduction Event has occurred, an amount equal to
the excess, if any, of (a) the Stated Principal Balance of such Mortgage Loan
over (b) the excess of (i) 90% of the Appraised Value of the related Mortgaged
Property as determined (A) by one or more Appraisals with respect to any
Mortgage Loan with an outstanding principal balance equal to or in excess of
$2,000,000 (the costs of which shall be paid by the Servicer or, if required by
Section 3.03(c), the Trustee or the Fiscal Agent, as applicable, as a Servicing
Advance), and (B) by an internal valuation performed by the Special Servicer
with respect to any Mortgage Loan with an outstanding principal balance less
than $2,000,000, over (ii) the sum of, as of the Due Date occurring in the month
of such Distribution Date, (1) to the extent not previously advanced by the
Servicer or the Trustee or the Fiscal Agent, as applicable, all unpaid interest
on such Mortgage Loan at a per annum rate equal to its Mortgage Rate, (2) all
unreimbursed Advances and interest thereon at the Reimbursement Rate in respect
of such Mortgage Loan and (3) all currently due and unpaid real estate taxes,
assessments, insurance premiums and ground rents and all other amounts due and
unpaid with respect to such Mortgage Loan, net of any amounts currently escrowed
for such amounts (which taxes, premiums, ground rents and other amounts have not
been subject to an Advance by the Servicer, the Trustee or the Fiscal Agent, as
applicable); provided, however, that, from the Appraisal Reduction Event until
such time as the Special Servicer has received the appraisal referred to in
clause (b)(i)(A) or (b)(i)(B) above, without limiting the Special Servicer's
obligation to order and obtain such Appraisal, the amount of the Appraisal
Reduction shall be deemed to be an amount equal to 35% of the current Stated
Principal Balance of the related Mortgage Loan until such time as such Appraisal
is received, at which time the amount of the Appraisal Reduction shall be
adjusted to reflect such Appraisal.
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Within 90 days after the Appraisal Reduction Event, the Special Servicer shall
order and receive an Appraisal (the cost of which shall be paid as a Servicing
Advance by the Servicer); provided, however, that with respect to an Appraisal
Reduction Event as set forth in clause (ii) of the definition of Appraisal
Reduction Event, the Special Servicer shall be required to make a determination
as to whether to order such Appraisal on or before the Clause (ii) Appraisal
Trigger Date and shall be required to obtain any such Appraisal that it has
determined to order no later than the 60th day after the Clause (ii) Appraisal
Trigger Date, which Appraisal shall be delivered by the Special Servicer to the
Servicer, and the Servicer shall deliver such Appraisal to the Trustee, who
shall deliver such appraisal to the Paying Agent and each Holder of a Class E,
Class F, Class G, Class H and Class I Certificate within 15 days of receipt by
the Trustee of such Appraisal from the Special Servicer.
With respect to each Mortgage Loan as to which an Appraisal Reduction
has occurred, the Special Servicer shall, within 30 days of each annual
anniversary of the related Appraisal Reduction Event or sooner if a material
event has occurred that the Special Servicer reasonably believes will positively
or negatively affect the valuation of the related Mortgaged Property, order a
new Appraisal (which may be an update of the preceding Appraisal that is not a
letter update but includes a current assessment of relevant market conditions),
the cost of which shall be paid by the Servicer (or, if required by Section
3.03(c), the Trustee or the Fiscal Agent, as applicable) as a Servicing Advance.
Based upon such Appraisal or update, the Special Servicer shall redetermine and
report to the Paying Agent, the Servicer and the Trustee the amount of the
Appraisal Reduction with respect to such Mortgage Loan and such redetermined
Appraisal Reduction shall replace the prior Appraisal Reduction with respect to
such Mortgage Loan and Servicer shall make Advances based on such new Appraisal.
With respect to each Mortgage Loan as to which an Appraisal Reduction
has occurred and which has become a Corrected Mortgage Loan and has remained
current for twelve consecutive Monthly Payments (for such purposes taking into
account any amendment or modification of such Mortgage Loan), and with respect
to which no other Appraisal Reduction Event has occurred and is continuing, the
Special Servicer may within 30 days of the date of such twelfth Monthly Payment,
order a new Appraisal (which may be an update of the preceding Appraisal that is
not a letter update but includes a current assessment of relevant market
conditions), the cost of which shall be paid by the Servicer (or, if required by
Section 3.03(c), the Trustee or the Fiscal Agent, as applicable) as a Servicing
Advance. Based upon such Appraisal or update, the Special Servicer shall
redetermine and report to the Paying Agent, the Servicer and the Trustee the
amount of the Appraisal Reduction with respect to such Mortgage Loan and such
redetermined Appraisal Reduction shall replace the prior Appraisal Reduction
with respect to such Mortgage Loan and Servicer shall make Advances based on
such new Appraisal. Notwithstanding the foregoing, the Special Servicer will not
be required to obtain an Appraisal with respect to a Mortgage Loan which is the
subject of an Appraisal Reduction Event to the extent that the Special Servicer
has obtained an Appraisal with respect to the related Mortgaged Property within
the 12-month period immediately prior to the occurrence of such Appraisal
Reduction Event and there has been no material change to the Mortgaged Property
that would affect the validity of such Appraisal. Instead, the Special Servicer
may use such prior Appraisal in calculating any Appraisal Reduction with respect
to such Mortgage Loan.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage Loan or the related REO Property will
be reduced to zero as of
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the date on which such Mortgage Loan is paid in full, liquidated, repurchased or
otherwise removed from the Trust Fund.
"Appraisal Reduction Amount": With respect to any Distribution Date,
(i) (when used in order to determine the Appraisal Reduction Amount on an
aggregate basis) an amount equal to the product of (a) one twelfth of the
Pass-Through Rate for each Class of Certificates to which an Appraisal Reduction
is allocated and (b) the sum of all Appraisal Reductions with respect to such
Distribution Date or (ii) (when used in order to determine the Appraisal
Reduction Amount on a Mortgage Loan-by-Mortgage Loan basis) with respect to each
Mortgage Loan for such Distribution Date, an amount equal to the product of (a)
one twelfth of the Pass-Through Rate for each Class of Certificates to which an
Appraisal Reduction is allocated and (b) the Appraisal Reduction with respect to
such Mortgage Loan with respect to such Distribution Date.
"Appraisal Reduction Event": With respect to any Mortgage Loan, the
earliest of (i) the third anniversary of the date on which an extension of the
Maturity Date of such Mortgage Loan becomes effective as a result of a
modification of such Mortgage Loan by the Special Servicer pursuant to the terms
hereof, which extension does not change the amount of Monthly Payments on the
Mortgage Loan, (ii) 90 days after an uncured delinquency (without regard to the
application of any grace period) occurs in respect of such Mortgage Loan, (iii)
30 days after the Maturity Date of any Balloon Loan if the related Balloon
Payment was not made on such date; (iv) the date on which a reduction in the
amount of Monthly Payments on such Mortgage Loan, or a change in any other
material economic term of such Mortgage Loan (other than an extension of the
Maturity Date that results from a modification of such Mortgage Loan by the
Special Servicer) becomes effective as a result of a modification of such
Mortgage Loan by the Special Servicer, (v) the date on which a receiver has been
appointed, (vi) the date on which the related Mortgagor declares bankruptcy and
(vii) immediately after a Mortgage Loan becomes an REO Loan; provided, however,
that an Appraisal Reduction Event shall not occur at any time when the aggregate
Certificate Balances of all Classes of Certificates (other than the Class A
Certificates) have been reduced to zero. The Special Servicer shall notify the
Servicer promptly upon the occurrence of any of the foregoing events.
"Appraised Value": With respect to any Mortgaged Property, the
appraised value thereof as determined by an Appraisal of the Mortgaged Property
securing such Mortgage Loan.
"Approved Sub-Servicer": The Chase Manhattan Bank, with respect to
Mortgage Loans No. ML-146, ML-147 and ML-148, as appointed by the Depositor.
"ARD Loan": Any Mortgage Loan that, by its original terms or by virtue
of any modification entered into as of the Closing Date, provides for the
accrual of interest at the Revised Rate, as well as the automatic imposition of
rapid amortization and negative amortization features and lock-box arrangements
with respect to rent collections, if the Mortgage Loan is not prepaid in full on
the Anticipated Repayment Date.
"Asset Status Report": As defined in Section 3.21(e).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument executed by the
Mortgagor, assigning to the mortgagee all of the income, rents and profits
derived from the ownership,
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operation, leasing or disposition of all or a portion of such Mortgaged
Property, in the form which was duly executed, acknowledged and delivered, as
amended, modified, renewed or extended through the date hereof and from time to
time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to any
Mortgage Loan that is delinquent in respect of its Balloon Payment (including
any REO Loan as to which the Balloon Payment would have been past due), an
amount equal to the sum of (a) the principal portion of the Monthly Payment that
would have been due on such Mortgage Loan on the related Due Date based on the
constant payment required by the related Mortgage Note or the original
amortization schedule thereof (as calculated with interest at the related
Mortgage Rate), if applicable, assuming such Balloon Payment has not become due,
after giving effect to any modification of such Mortgage Loan, and (b) interest
on the Stated Principal Balance of such Mortgage Loan at the applicable Net
Mortgage Rate.
"Authenticating Agent": Any agent of the Trustee appointed to act as
Authenticating Agent pursuant to Section 5.01(e).
"Available Distribution Amount": With respect to any Distribution Date,
an amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the Trust Fund on deposit in the
Certificate Account and the Lower-Tier Distribution Account (exclusive of any
investment income contained therein) as of the close of business on the Business
Day preceding the related Servicer Remittance Date, exclusive of (without
duplication):
(i) all Monthly Payments paid by the Mortgagors that are due on a
Due Date following the end of the related Due Period;
(ii) all Principal Prepayments, Balloon Payments, Liquidation
Proceeds or Insurance and Condemnation Proceeds (in each case,
together with any related payments of interest allocable to the
period following the Due Date for the related Mortgage Loan
during the related Due Period), and all other unscheduled
recoveries on the Mortgage Loans, in each case, received after
the end of the related Due Period;
(iii) all amounts payable or reimbursable to any Person from the
Certificate Account pursuant to clauses (ii) - (xviii),
inclusive, of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from the
Lower-Tier Distribution Account pursuant to clauses (ii) - (iv),
inclusive, of Section 3.05(b);
(v) all Yield Maintenance Charges and Prepayment Premiums;
(vi) Excess Fixed Yield;
(vii) all amounts deposited in the Certificate Account or the
Lower-Tier Distribution Account, as the case may be, in error;
and
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(viii) with respect to the Interest Reserve Loans and any Distribution
Date occurring in (1) each February or (2) any January in a year
which is not a leap year, an amount equal to the related
Withheld Amount to the extent such amount is on deposit in the
Certificate Account, or the Lower-Tier Distribution Account, and
held for future distribution pursuant to Section 3.25.
(b) if and to the extent not already included in clause (a) hereof, the
aggregate amount transferred from the REO Account to the Certificate Account for
such Distribution Date pursuant to Section 3.16(c), less all amounts payable or
reimbursable to any Person from the Certificate Account pursuant to clauses (ii)
- - (xviii), inclusive, of Section 3.05(a);
(c) the aggregate amount of any P&I Advances made by the Servicer, the
Trustee or the Fiscal Agent, as applicable, for such Distribution Date pursuant
to Section 4.03 or 7.05; and
(d) for the Distribution Date occurring in each March, the related
Withheld Amounts remitted to the Lower-Tier Distribution Account pursuant to
Section 3.25(b).
Notwithstanding the investment of funds held in the Certificate Account or the
Lower-Tier Distribution Account pursuant to Section 3.06, for purposes of
calculating the Available Distribution Amount, the amounts so invested shall be
deemed to remain on deposit in such account.
"B Component": One of the six components comprising the Class X
Certificates, representing a "specified portion" (within the meaning of Treasury
Regulations Section 1.860G-1(a)(2)(i)(C)) of the interest payments on the Class
LB Uncertificated Interest.
"B Component Interest Accrual Amount": With respect to each
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the B Component Pass-Through Rate, on the B Notional
Amount outstanding immediately prior to such Distribution Date.
"B Component Pass-Through Rate": With respect to any Distribution Date,
the excess, if any, of (i) the Weighted Average Net Mortgage Rate over (ii) the
Class B Pass-Through Rate.
"B Notional Amount": With respect to any date of determination, an
amount equal to the Lower-Tier Principal Amount of the Class LB Uncertificated
Interest as of the preceding Distribution Date (after giving effect to the
distribution of principal and allocation of Collateral Support Deficit losses on
such preceding Distribution Date), or the Cut-off Date in the case of the first
Distribution Date.
"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 Maturity Date, other than any
Mortgage Loan identified on the Mortgage Loan Schedule as having interest
calculated on the basis of the actual number of days in the periods between due
dates and a year assumed to consist of 360 days and being fully amortizing.
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"Balloon Payment": With respect to any Balloon Mortgage Loan as of any
date of determination, the Monthly Payment payable on the Maturity Date of such
Mortgage Loan.
"Banc One": Banc One Mortgage Capital Markets, LLC, a Delaware limited
liability company.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time to
time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment on
any Mortgage Loan and with respect to any of the Class A, Class B, Class C,
Class D or Class E Certificates, a fraction (A) whose numerator is the greater
of (x) zero and (y) the difference between (i) the Pass-Through Rate on such
Class of Certificates and (ii) the Discount Rate used in calculating the Yield
Maintenance Charge with respect to such Principal Prepayment and (B) whose
denominator is the difference between (i) the Mortgage Rate on the related
Mortgage Loan and (ii) the Discount Rate used in calculating the Yield
Maintenance Charge with respect to such principal prepayment; provided, however,
that under no circumstances shall the Base Interest Fraction be greater than
one. If such Discount Rate is greater than the Mortgage Rate on the related
Mortgage Loan, then the Base Interest Fraction shall equal zero.
"Book-Entry Certificate": Any Certificate registered in the name of the
Depository or its nominee.
"Breach": As defined in Section 2.03(b).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Chicago, Illinois (or such
other city and state in which the Corporate Trust Office of the Trustee is
located) or Dallas, Texas (or such other city and state in which the principal
place of business of the Servicer or the Special Servicer is located) are
authorized or obligated by law or executive order to remain closed.
"C Component": One of the six components comprising the Class X
Certificates, representing a "specified portion" (within the meaning of Treasury
Regulations Section 1.860G-1(a)(2)(i)(C)) of the interest payments on the Class
LC Uncertificated Interest.
"C Component Interest Accrual Amount": With respect to each
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the C Component Pass-Through Rate, on the C Notional
Amount outstanding immediately prior to such Distribution Date.
"C Component Pass-Through Rate": With respect to any Distribution Date,
the excess, if any, of (i) the Weighted Average Net Mortgage Rate over (ii) the
Class C Pass-Through Rate.
"C Notional Amount": With respect to any date of determination, an
amount equal to the Lower-Tier Principal Amount of the Class LC Uncertificated
Interest as of the preceding Distribution Date (after giving effect to the
distribution of principal and allocation of Collateral Support Deficit losses on
such preceding Distribution Date), or the Cut-off Date in the case of the first
Distribution Date.
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"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 1999-C1, as executed and delivered by the
Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"Certificate Account": The custodial account or accounts created and
maintained by the Servicer pursuant to Section 3.04(a) in the name of the
Trustee on behalf of the Certificateholders, into which the amounts set forth in
Section 3.04(a) shall be deposited directly. Any such account or accounts shall
be an Eligible Account.
"Certificate Balance": With respect to any Class of Certificates (other
than the Residual Certificates and the Class X Certificates), (i) on or prior to
the first Distribution Date, an amount equal to the Original Certificate Balance
of such Class as specified in the Preliminary Statement hereto, and (ii) as of
any date of determination after the first Distribution Date, the Certificate
Balance of such Class on the Distribution Date immediately prior to such date of
determination (determined as adjusted pursuant to Section 1.02(d)).
"Certificate Deferred Interest": For any Distribution Date with respect
to any Class of Certificates, the amount of Mortgage Deferred Interest allocated
to such Class pursuant to Section 4.06(a).
"Certificate Factor": With respect to any Class of Regular
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to 8 places, the numerator of which is the then related
Certificate Balance or Notional Amount, as applicable, and the denominator of
which is the related Original Certificate Balance or Original Notional Amount,
as applicable.
"Certificateholder" or "Holder": The Person in whose name a Certificate
is registered in the Certificate Register; provided, however, that solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement, any Certificate registered in the name of the Servicer, the Special
Servicer, the Depositor or any Affiliate of either 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 has been obtained, if
such consent, approval or waiver sought from such party would in any way
increase its compensation or limit its obligations as Servicer, Special Servicer
or Depositor, as applicable, hereunder; further provided, however, that so long
as there is no Event of Default with respect to the Servicer or the Special
Servicer, the Servicer, Special Servicer and any Affiliates thereof shall be
entitled to exercise such Voting Rights with respect to any issue which could
reasonably be believed to adversely affect such party's compensation or increase
its obligations or liabilities hereunder; and further provided, however, that
such restrictions will not apply to the exercise of the Special Servicer's
rights (if applicable) as a member of the Controlling Class or to the exercise
of the Controlling Class Certificateholders or the Directing Certificateholder
of their rights even if such Certificateholders are Affiliates of the Servicer
or Special Servicer. The Trustee shall be entitled to request and rely upon a
certificate of the Servicer, the Special Servicer or the Depositor 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
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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.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02(a).
"Class": With respect to any Certificates or Uncertificated Lower-Tier
Interests, all of the Certificates or Uncertificated Lower-Tier Interests
bearing the same alphabetical (and, if applicable, numerical) Class designation.
"Class A Certificate": Any Class A-1 or Class A-2 Certificate.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on the
face thereof, in the form of Exhibit A-1 hereto.
"Class A-1 Pass-Through Rate": With respect to any Distribution Date, a
rate per annum equal to 6.48%.
"Class A-2 Certificate": A Certificate designated as "Class A-2" on the
face thereof, in the form of Exhibit A-2 hereto.
"Class A-2 Pass-Through Rate": With respect to any Distribution Date, a
rate per annum equal to 6.82%.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-3 hereto.
"Class B Pass-Through Rate": With respect to any Distribution Date, a
rate per annum equal to the lesser of (a) 6.98% and (b) the Weighted Average Net
Mortgage Rate.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-4 hereto.
"Class C Pass-Through Rate": With respect to any Distribution Date, a
rate per annum equal to the lesser of (a) 7.10% and (b) the Weighted Average Net
Mortgage Rate.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-5 hereto.
"Class D Pass-Through Rate": With respect to any Distribution Date, a
rate per annum equal to the lesser of (a) 7.15% and (b) the Weighted Average Net
Mortgage Rate.
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"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-6 hereto.
"Class E Pass-Through Rate": With respect to any Distribution Date, a
rate per annum equal to the lesser of (a) 7.15% and (b) the Weighted Average Net
Mortgage Rate.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-7 hereto.
"Class F Pass-Through Rate": With respect to any Distribution Date, a
rate per annum equal to the lesser of (a) 6.00% and (b) the Weighted Average Net
Mortgage Rate.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-8 hereto.
"Class G Pass-Through Rate": With respect to any Distribution Date, a
rate per annum equal to the lesser of (a) 6.00% and (b) the Weighted Average Net
Mortgage Rate.
"Class H Certificate": A Certificate designated as "Class H" on the
face thereof, in the form of Exhibit A-9 hereto.
"Class H Pass-Through Rate": With respect to any Distribution Date, a
rate per annum equal to the lesser of (a) 6.00% and (b) the Weighted Average Net
Mortgage Rate.
"Class I Certificate": A Certificate designated as "Class I" on the
face thereof, in the form of Exhibit A-10 hereto.
"Class I Pass-Through Rate": With respect to any Distribution Date, a
rate per annum equal to the lesser of (a) 6.00% and (b) the Weighted Average Net
Mortgage Rate.
"Class LA-1 Interest Fraction": With respect to any Distribution Date,
a fraction, the numerator of which is the A-1 Component Interest Accrual Amount
and the denominator of which is the sum of the A-1 Component Interest Accrual
Amount, the A-2 Component Interest Accrual Amount, the B Component Interest
Accrual Amount, the C Component Interest Accrual Amount, the D-E Component
Interest Accrual Amount and the F-I Component Interest Accrual Amount.
"Class LA-1 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has the
Original Lower-Tier Principal Amount equal to the Certificate Balance of the
Class A-1 Certificates and a per annum rate of interest equal to the Weighted
Average Net Mortgage Rate.
"Class LA-2 Interest Fraction": With respect to any Distribution Date,
a fraction, the numerator of which is the A-2 Component Interest Accrual Amount
and the denominator of which is the sum of the A-1 Component Interest Accrual
Amount, the A-2 Component Interest Accrual Amount, the B Component Interest
Accrual Amount, the C Component Interest Accrual Amount, the D-E Component
Interest Accrual Amount and the F-I Component Interest Accrual Amount.
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"Class LA-2 Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has an
Original Lower-Tier Principal Amount equal to the Certificate Balance of the
Class A-2 Certificates and a per annum rate of interest equal to the Weighted
Average Net Mortgage Rate.
"Class LB Interest Fraction": With respect to any Distribution Date, a
fraction, the numerator of which is the B Component Interest Accrual Amount and
the denominator of which is the sum of the A-1 Component Interest Accrual
Amount, the A-2 Component Interest Accrual Amount, the B Component Interest
Accrual Amount, the C Component Interest Accrual Amount, the D-E Component
Interest Accrual Amount and the F-I Component Interest Accrual Amount.
"Class LB Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has an
Original Lower-Tier Principal Amount equal to the Certificate Balance of the
Class B Certificates and a per annum rate of interest equal to the Weighted
Average Net Mortgage Rate.
"Class LC Interest Fraction": With respect to any Distribution Date, a
fraction the numerator of which is the C Component Interest Accrual Amount and
the denominator of which is the sum of the A-1 Component Interest Accrual
Amount, the A-2 Component Interest Accrual Amount, the B Component Interest
Accrual Amount, the C Component Interest Accrual Amount, the D-E Component
Interest Accrual Amount and the F-I Component Interest Accrual Amount.
"Class LC Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has an
Original Lower-Tier Principal Amount equal to the Certificate Balance of the
Class C Certificates and a per annum rate of interest equal to the Weighted
Average Net Mortgage Rate.
"Class LD Interest Fraction": With respect to any Distribution Date, a
fraction that is equal to the product of (a) a fraction, the numerator of which
is the D-E Component Interest Accrual Amount and the denominator of which is the
sum of the A-1 Component Interest Accrual Amount, the A-2 Component Interest
Accrual Amount, the B Component Interest Accrual Amount, the C Component
Interest Accrual Amount, the D-E Component Interest Accrual Amount and the F-I
Component Interest Accrual Amount and (b) a fraction, the numerator of which is
the Lower-Tier Principal Amount of the Class LD Uncertificated Interest and the
denominator of which is the D-E Notional Amount.
"Class LD Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has an
Original Lower-Tier Principal Amount equal to the Certificate Balance of the
Class D Certificates and a per annum rate of interest equal to the Weighted
Average Net Mortgage Rate.
"Class LE Interest Fraction": With respect to any Distribution Date, a
fraction that is equal to the product of (a) a fraction, the numerator of which
is the D-E Component Interest Accrual Amount and the denominator of which is the
sum of the A-1 Component Interest Accrual Amount, the A-2 Component Interest
Accrual Amount, the B Component Interest Accrual Amount, the C Component
Interest Accrual Amount, the D-E Component Interest Accrual Amount and the F-I
Component Interest Accrual Amount and (b) a fraction, the
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numerator of which is the Lower-Tier Principal Amount of the Class LE
Uncertificated Interest and the denominator of which is the D-E Notional Amount.
"Class LE Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has an
Original Lower-Tier Principal Amount equal to the Certificate Balance of the
Class E Certificates and a per annum rate of interest equal to the Weighted
Average Net Mortgage Rate.
"Class LF Interest Fraction": With respect to any Distribution Date, a
fraction that is equal to the product of (a) a fraction, the numerator of which
is the F-I Component Interest Accrual Amount and the denominator of which is the
sum of the A-1 Component Interest Accrual Amount, the A-2 Component Interest
Accrual Amount, the B Component Interest Accrual Amount, the C Component
Interest Accrual Amount, the D-E Component Interest Accrual Amount and the F-I
Component Interest Accrual Amount and (b) a fraction, the numerator of which is
the Lower-Tier Principal Amount of the Class LF Uncertificated Interest and the
denominator of which is the F-I Notional Amount.
"Class LF Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has an
Original Lower-Tier Principal Amount equal to the Certificate Balance of the
Class F Certificates and a per annum rate of interest equal to the Weighted
Average Net Mortgage Rate.
"Class LG Interest Fraction": With respect to any Distribution Date, a
fraction that is equal to the product of (a) a fraction, the numerator of which
is the F-I Component Interest Accrual Amount and the denominator of which is the
sum of the A-1 Component Interest Accrual Amount, the A-2 Component Interest
Accrual Amount, the B Component Interest Accrual Amount, the C Component
Interest Accrual Amount, the D-E Component Interest Accrual Amount and the F-I
Component Interest Accrual Amount and (b) a fraction, the numerator of which is
the Lower-Tier Principal Amount of the Class LG Uncertificated Interest and the
denominator of which is the F-I Notional Amount.
"Class LG Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has an
Original Lower-Tier Principal Amount equal to the Certificate Balance of the
Class G Certificates and a per annum rate of interest equal to the Weighted
Average Net Mortgage Rate.
"Class LH Interest Fraction": With respect to any Distribution Date, a
fraction that is equal to the product of (a) a fraction, the numerator of which
is the F-I Component Interest Accrual Amount and the denominator of which is the
sum of the A-1 Component Interest Accrual Amount, the A-2 Component Interest
Accrual Amount, the B Component Interest Accrual Amount, the C Component
Interest Accrual Amount, the D-E Component Interest Accrual Amount and the F-I
Component Interest Accrual Amount and (b) a fraction, the numerator of which is
the Lower-Tier Principal Amount of the Class LH Uncertificated Interest and the
denominator of which is the F-I Notional Amount.
"Class LH Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has an
Original Lower-Tier Principal Amount equal to the Certificate Balance of the
Class H Certificates and a per annum rate of interest equal to the Weighted
Average Net Mortgage Rate.
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"Class LI Interest Fraction": With respect to any Distribution Date, a
fraction that is equal to the product of (a) a fraction, the numerator of which
is the F-I Component Interest Accrual Amount and the denominator of which is the
sum of the A-1 Component Interest Accrual Amount, the A-2 Component Interest
Accrual Amount, the B Component Interest Accrual Amount, the C Component
Interest Accrual Amount, the D-E Component Interest Accrual Amount and the F-I
Component Interest Accrual Amount and (b) a fraction, the numerator of which is
the Lower-Tier Principal Amount of the Class LI Uncertificated Interest and the
denominator of which is the F-I Notional Amount.
"Class LI Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC and has an
Original Lower-Tier Principal Amount equal to the Certificate Balance of the
Class I Certificates and a per annum rate of interest equal to the Weighted
Average Net Mortgage Rate.
"Class LR Certificate": A Certificate designated as "Class LR" on the
face thereof, in the form of Exhibit A-13 hereto.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof, in the form of Exhibit A-14 hereto.
"Class Unpaid Interest Shortfall": As to any Distribution Date and any
Class of Regular Certificates, the excess, if any, of (a) the sum of (i) the
Distributable Certificate Interest in respect of such Class for the immediately
preceding Distribution Date and (ii) any outstanding Class Unpaid Interest
Shortfall payable to such Class on such preceding Distribution Date over (b) the
aggregate amount in respect of interest actually distributed to such Class on
such immediately preceding Distribution Date. The Class Unpaid Interest
Shortfall with respect to any Class of Certificates as of the initial
Distribution Date is zero. No interest shall accrue on Class Unpaid Interest
Shortfalls.
"Class X Certificate": A Certificate designated as "Class X" on the
face thereof, in the form of Exhibit A-13 hereto.
"Class X Interest Accrual Amount": With respect to any Distribution
Date, the sum of the A-1 Component Interest Accrual Amount, the A-2 Component
Interest Accrual Amount, the B Component Interest Accrual Amount, the C
Component Interest Accrual Amount, the D-E Component Interest Accrual Amount and
the F-I Component Interest Accrual Amount.
"Class X Notional Amount": With respect to any date of determination,
the sum of the A-1 Notional Amount, the A-2 Notional Amount, the B Notional
Amount, the C Notional Amount, the D-E Notional Amount and the F-I Notional
Amount, which shall be equal to the aggregate Stated Principal Balance of the
Mortgage Loans as of the Distribution Date preceding the date of determination
(after giving effect to the distribution of principal on such preceding
Distribution Date) or, in the case of the first Distribution Date, the Cut-off
Date.
"Class X Pass-Through Rate": With respect to any Distribution Date, the
excess, if any of (a) the Weighted Average Net Mortgage Rate over (b) the
weighted average of the Pass-Through Rates of the other Certificates (other than
Classes R and LR), weighted on the basis of their respective Certificate
Balances immediately prior to such Distribution Date. The
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Class X Pass-Through Rate for the first Distribution Date is expected to be
approximately 0.5994% per annum.
"Clause (ii) Appraisal Trigger Date": The 90th day after an uncured
delinquency occurs in respect of a Mortgage Loan.
"Closing Date": June 7, 1999.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, and applicable final or temporary regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Collateral Support Deficit": As defined in Section 4.04(a).
"Collateral Tabulation Report": As defined in Section 4.02(a).
"Commission": The Securities and Exchange Commission.
"Component": Each of the A-1 Component, the A-2 Component, the B
Component, the C Component, the D-E Component or the F-I Component.
"Control Persons": As defined in Section 3.05(b)(iii).
"Controlling Class": As of any date of determination, the most
subordinate Class of Certificates (other than the Residual Certificates) then
outstanding that has a then aggregate Certificate Balance at least equal to the
lesser of (a) 1% of the outstanding aggregate principal balance of the Mortgage
Loans as of the Closing Date and (b) 25% of the Original Certificate Balance of
such Class. For purposes of determining identity of the Controlling Class, the
Certificate Balance of any Class other than Classes E, F, G, H and I shall be
deemed to be reduced by the amount allocated to such Class of any Appraisal
Reductions relating to Mortgage Loans as to which Liquidation Proceeds or other
final payment has not yet been received.
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified to
the Trustee from time to time by such Holder (or Certificate Owner).
"Corporate Trust Office": The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at 135 South LaSalle Street, Suite 1625,
Chicago, Illinois 60674, Attention: Asset-Backed Securities Trust Services Group
PW V 1999-C1.
"Corrected Mortgage Loan": Any Specially Serviced Mortgage Loan that
has become current and remained current for three consecutive Monthly Payments
(for such purposes taking into account any modification or amendment of such
Mortgage Loan) and (provided that no additional default is foreseeable in the
reasonable judgment of the Special Servicer) as to which the Special Servicer
has returned servicing of such Mortgage Loan to the Servicer pursuant to Section
3.21(a).
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"Credit File": Any documents, other than documents required to be part
of the related Mortgage File, in the possession of the Servicer and relating to
the origination and servicing of any Mortgage Loan.
"CSSA": The Commercial Real Estate Secondary Market And Securitization
Association.
"CSSA Data Files": With respect to the Mortgage Loans, the files
specified in Exhibits I-9, I-10 and I-11, each in ASCII comma delimited format,
as modified from time to time with the consent of the Servicer and the Trustee,
which consent shall not be unreasonably withheld.
"CSSA Operating Information": With respect to the Mortgage Loans, the
files specified in Exhibits I-7 and I-8, as modified from time to time with the
consent of the Servicer and Trustee, which consent shall not be unreasonably
withheld.
"CSSA Standard Information Package": With respect to the Mortgage
Loans, the CSSA Data Files and the CSSA Surveillance Reports, as modified from
time to time with the consent of the Servicer and the Trustee, which consent
shall not be unreasonably withheld.
"CSSA Surveillance Reports": With respect to the Mortgage Loans, the
files specified in Exhibits I-1 through I-6, as modified from time to time with
the consent of the Servicer and Trustee, which consent shall not be unreasonably
withheld.
"CTL Loan": Any Mortgage Loan that is secured by a Mortgage on a
Mortgaged Property that is leased on a long-term net-lease basis to a tenant
whose long-term unsecured debt rating (or the long-term unsecured debt rating of
the guarantor of its obligations under the related lease) is the basis on which
the related Mortgage Loan Seller underwrote the related Mortgage Loan, each of
which is identified as such on Schedule 6.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.12 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, either Mortgage Loan Seller or an Affiliate
of any of them. LaSalle Bank National Association, shall be the initial
Custodian.
"Cut-off Date": June 1, 1999, except that with respect to Mortgage Loan
No. PW-3825, the Cut-off Date is June 5, 1999.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan,
the outstanding principal balance of such Mortgage Loan as of its respective
Cut-off Date, after application of all payments of principal due on or before
such date, whether or not received.
"D-E Component": One of the six components comprising the Class X
Certificates, representing a "specified portion" (within the meaning of Treasury
Regulations Section 1.860G-1(a)(2)(i)(C)) of the interest payments on the Class
LD Uncertificated Interest and the Class LE Uncertificated Interest.
"D-E Component Interest Accrual Amount": With respect to each
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the D-E
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Component Pass-Through Rate, on the D-E Notional Amount outstanding
immediately prior to such Distribution Date.
"D-E Component Pass-Through Rate": With respect to any date of
determination, the excess, if any, of (i) the Weighted Average Net Mortgage Rate
over (ii) the weighted average of (y) the Class D Pass-Through Rate and (z) the
Class E Pass-Through Rate, weighted on the basis of the respective Certificate
Balances of such Classes immediately prior to such Distribution Date.
"D-E Notional Amount": With respect to any date of determination, an
amount equal to the sum of (a) the Lower-Tier Principal Amount of the Class LD
Uncertificated Interest and (b) the Lower-Tier Principal Amount of the Class LE
Uncertificated Interest, in each case as of the preceding Distribution Date
(after giving effect to the distribution of principal and allocation of
Collateral Support Deficit on such preceding Distribution Date), or the Cut-off
Date in the case of the first Distribution Date.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan for
any twelve month period (or lesser period, as appropriate), the ratio of (i) Net
Operating Income produced by the related Mortgaged Property during such period
to (ii) the aggregate amount of Monthly Payments (other than any Balloon
Payment) due (or Assumed Monthly Payments deemed to be due) under such Mortgage
Loan during such period.
"Default Interest": With respect to any defaulted Mortgage Loan for any
related Due Period, all interest accrued in respect of such Mortgage Loan during
such Due Period provided for in the related Mortgage Note or Mortgage as a
result of the related default (exclusive of late payment charges) that is in
excess of interest accrued at the related Mortgage Rate on the unpaid principal
balance of such Mortgage Loan outstanding from time to time during such Due
Period.
"Defaulted Mortgage Loan": A Mortgage Loan that is delinquent at least
sixty days in respect of its Monthly Payments or more than thirty days
delinquent in respect of its Balloon Payment, if any, such delinquency to be
determined in either case 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.
"Defaulting Party": As defined in Section 7.01(b).
"Defect": As defined in Section 2.02(e).
"Deficient Valuation": With respect to any Mortgage Loan, a valuation
of the related Mortgaged Property by a court of competent jurisdiction, in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which amount results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": As defined in Section 5.01(a).
"Denomination": As defined in Section 5.01(c).
"Depositor": PaineWebber Mortgage Acceptance Corporation V, a Delaware
corporation, or its successor in interest.
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"Depository": The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository, for purposes of
registering those Certificates that are to be Book-Entry Certificates, is Cede &
Co. The Depository shall at all times be a "clearing corporation" as defined in
Section 8-102(5) of the Uniform Commercial Code of the State of New York and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the fifth
Business Day preceding such Distribution Date.
"Directing Certificateholder": The Controlling Class Certificateholder
selected by more than 50% of the Controlling Class Certificateholders, by
Certificate Balance, as certified by the Certificate Registrar from time to
time; provided, however, that (i) absent such selection, (ii) until a Directing
Certificateholder is so selected or (iii) upon receipt of a notice from a
majority of the Controlling Class Certificateholders, by Certificate Balance,
that a Directing Certificateholder is no longer designated, the Controlling
Class Certificateholder that owns the largest aggregate Certificate Balance of
the Controlling Class, as certified by the Certificate Registrar from time to
time, will be the Directing Certificateholder.
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof that are not customarily provided
to tenants in connection with the rental of space "for occupancy only" within
the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers, the use of such REO Property in a trade or business conducted
by the Trust Fund or the performance of any construction work on such REO
Property (other than the completion of a building or improvement, where more
than 10% of the construction of such building or improvement was completed
before default became imminent), other than through an Independent Contractor;
provided, however, that the Trustee (or the Special Servicer on behalf of the
Trustee) shall not be considered to Directly Operate an REO Property solely
because the Trustee (or the Special 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 or takes other actions consistent
with Treasury Regulations Section 1.856-4(b)(5)(ii).
"Discount Rate": A rate which, when compounded monthly, is equivalent
to the Yield Rate when compounded semi-annually.
"Disqualified Organization": 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 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
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Section 521 of the Code) which is exempt from the tax imposed by Chapter 1 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(a)(2)(C) of the Code and (v) any other Person so
designated by the Servicer based upon an Opinion of Counsel that the holding of
an Ownership Interest in a Residual Certificate by such Person may cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a REMIC 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 Distribution
Date, as to any Class of Regular Certificates, the Accrued Certificate Interest
in respect of such Class of Regular Certificates for such Distribution Date,
reduced (to not less than zero) by the sum of (a) such Class' pro rata share
(based on Accrued Certificate Interest on each such Class) of any Prepayment
Interest Shortfall not covered by the Servicing Fee (exclusive of that portion
of the Servicing Fee that represents the Trustee Fee) and Excess Fixed Yield and
(b) with respect to each such Class (other than the Class X Certificates), such
Class' share of any Certificate Deferred Interest allocated in accordance with
Section 4.06(a) herein.
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account and the Lower-Tier Distribution Account.
"Distribution Date": The 15th day of any month, or if such 15th day is
not a Business Day, the Business Day immediately following, commencing in July,
1999.
"Distribution Date Statement": As defined in Section 4.02(a).
"Due Date": With respect to (i) any Mortgage Loan on or prior to its
Maturity Date, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment thereon is scheduled to be first due, (ii) any
Mortgage Loan after the Maturity Date therefor, the day of the month set forth
in the related Mortgage Note on which each Monthly Payment on such Mortgage Loan
had been scheduled to be first due, and (iii) any REO Loan, the day of the month
set forth in the related Mortgage Note on which each Monthly Payment on the
related Mortgage Loan had been scheduled to be first due.
"Due Period": With respect to any Distribution Date and any Mortgage
Loan (or REO Loan) other than Mortgage Loan No. PW-3825, the period commencing
on the second day of the month preceding the month in which such Distribution
Date occurs and ending on the first day of the month in which such Distribution
Date occurs; and for each Distribution Date and Mortgage Loan No. PW-3825, the
period commencing on the sixth day of the month preceding the month in which
such Distribution Date occurs and ending on the fifth day of the month in which
such Distribution Date occurs. Notwithstanding the foregoing, in the event that
the last day of a Due Period is not a Business Day, any payments received with
respect to the Mortgage Loans relating to such Due Period on the Business Day
immediately following such day shall be deemed to have been received during such
Due Period and not during any other Due Period. For the avoidance of doubt, any
reference to a Due Period for any Mortgage Loan or Mortgage Loans shall refer to
the related Due Period for each such Mortgage Loan.
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"EDGAR": The Electronic Data Gathering and Retrieval System of the
Commission.
"Eligible Account": Either (i) an account or accounts maintained with a
federal- or state-chartered depository institution or trust company (including
the Trustee) the long-term unsecured debt obligations of which are rated at
least "AA-" by Fitch IBCA, if rated by Fitch IBCA (or, if not rated by Fitch
IBCA, then having the equivalent ratings from S&P and Moody's), and "Aa3" by
Moody's, if the deposits are to be held in such account for more than 30 days or
the short-term debt obligations of which have a short-term rating of not less
than "P-1" by Moody's and "F-1+" from Fitch IBCA, if rated by Fitch IBCA (or, if
not rated by Fitch IBCA, then rated "A-1" by S&P), if the deposits are to be
held in such account for 30 days or less, or such other account or accounts with
respect to which each of the Rating Agencies shall have confirmed in writing
that that the then current rating assigned to any of the Certificates that are
currently being rated by such Rating Agency will not be qualified, downgraded or
withdrawn by reason thereof or (ii) a segregated trust account or accounts
maintained with the corporate trust department of a federal- or state-chartered
depository institution or trust company (including the Trustee) that, in either
case, has a combined capital and surplus of at least $50,000,000 and has
corporate trust powers, acting in its fiduciary capacity, provided that any
state-chartered depository institution or trust company is subject to regulation
regarding fiduciary funds substantially similar to 12 C.F.R. ss.9.10(b) or such
other account or accounts with respect to which each of the Rating Agencies
shall have confirmed in writing that the then current rating assigned to any of
the Certificates that are currently being rated by such Rating Agency will not
be qualified, downgraded or withdrawn by reason thereof. Eligible Accounts may
bear interest. No Eligible Account shall be evidenced by a certificate of
deposit, passbook or other similar instrument.
"Eligible Investor": Either (i) a Qualified Institutional Buyer that is
purchasing for its own account or for the account of a Qualified Institutional
Buyer to whom notice is given that the offer, sale or transfer is being made in
reliance on Rule 144A or (ii) an Institutional Accredited Investor.
"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 Specially
Serviced Mortgage Loans as to which the related Mortgaged Property is a
multifamily property or (ii) the American Society for Testing and Materials in
the case of Specially Serviced Mortgage Loans as to which the related Mortgaged
Property is a non-multifamily property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(d)(i)(A).
"Escrow Payment": Any payment received by the Servicer or the Special
Servicer for the account of any Mortgagor for application toward the payment of
real estate taxes, assessments, insurance premiums and similar items in respect
of the related Mortgaged Property, including amounts for deposit to any reserve
account.
"Event of Default": One or more of the events described in Section
7.01(a).
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"Excess Fixed Yield": With respect to each Mortgage Loan (other than
the Mortgage Loans identified as ML-146, ML-147 and ML-148), the fee payable to
the recipient of the Excess Fixed Yield pursuant to Section 3.11(e), as reduced
by the amounts required to be used to cover Prepayment Interest Shortfalls. The
Excess Fixed Yield shall be a contract right and shall not constitute an
interest in either the Lower-Tier REMIC or the Upper-Tier REMIC formed
hereunder. Unless otherwise stated herein, the Excess Fixed Yield shall be
treated in a manner identical to, and shall be pari passu with, the Servicing
Fee.
"Excess Fixed Yield Rate": With respect to any Distribution Date and
each Mortgage Loan (other than the Mortgage Loans identified as ML-146, ML-147
and ML-148), an amount equal to 0.035% per annum computed on the basis of the
Stated Principal Balance of such Mortgage Loan as of the immediately preceding
Distribution Date (in each case, after giving effect to the distribution of
principal and interest on such prior Distribution Date) and on the basis of a
year assumed to consist of 360 days and twelve 30-day months. Unless otherwise
stated herein, the Excess Fixed Yield Rate shall be treated in a manner
identical to, and shall be pari passu with, the Servicing Fee Rate.
"Excess Interest": With respect to each ARD Loan, interest accrued on
such ARD Loan allocable to the Excess Rate, including all interest accrued
thereon.
"Excess Interest Distribution Account": The trust account created and
maintained by the Trustee pursuant to Section 3.04(d) on behalf of the
Certificateholders, which shall be entitled "LaSalle Bank National Association,
as Trustee, in trust for the registered Holders of PaineWebber Mortgage
Acceptance Corporation V Commercial Pass-Through Certificates, Series 1999-C1,
Excess Interest Distribution Account" and which must be an Eligible Account. The
Excess Interest Distribution Account shall not be an asset of the Lower-Tier
REMIC or the Upper-Tier REMIC formed hereunder.
"Excess Rate": With respect to each of the ARD Loans, the excess of (i)
the applicable Revised Rate over (ii) the applicable Mortgage Rate, as set forth
in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended from
time to time.
"Exchange Act Report": A Current Report on Form 8-K or an Annual Report
on Form 10-K respecting the Trust Fund and/or the Certificates, and containing
as exhibits the monthly Distribution Date Statement and the CSSA Standard
Information Package and in each case under cover of the related form required by
the Exchange Act.
"F-I Component": One of the six components comprising the Class X
Certificates, representing a "specified portion" (within the meaning of Treasury
Regulations Section 1.860G-(1)(a)(2)(i)(C)) of the interest payments on the
Class LF Uncertificated Interest, the Class LG Uncertificated Interest, the
Class LH Uncertificated Interest and the Class LI Uncertificated Interest.
"F-I Component Interest Accrual Amount": With respect to each
Distribution Date, an amount equal to interest accrued during the related
Interest Accrual Period at the F-I
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Component Pass-Through Rate on the F-I Notional Amount outstanding immediately
prior to such Distribution Date.
"F-I Component Pass-Through Rate": With respect to any Distribution
Date, the excess, if any, of (i) the Weighted Average Net Mortgage Rate over
(ii) the weighted average of (w) the Class F Pass-Through Rate, (x) the Class G
Pass-Through Rate, (y) the Class H Pass-Through Rate and (z) the Class I
Pass-Through Rate, weighted on the basis of the respective Certificate Balances
of such Classes immediately prior to such Distribution Date.
"F-I Notional Amount": With respect to any date of determination, an
amount equal to the (i) the Lower-Tier Principal Amount of the Class LF
Uncertificated Interest, (ii) the Lower-Tier Principal Amount of the Class LG
Uncertificated Interest, (iii) the Lower-Tier Principal Amount of the Class LH
Uncertificated Interest and (iv) the Lower-Tier Principal Amount of the Class LI
Uncertificated Interest, in each case as of the preceding Distribution Date
(after giving effect to the distribution of principal and allocation of
Collateral Support Deficit on such preceding Distribution Date), or the Cut-off
Date in the case of the first Distribution Date.
"FDIC": Federal Deposit Insurance Corporation or any successor thereto.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor
thereto.
"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 a
Mortgage Loan Seller pursuant to Section 3.3 of the related Mortgage Loan
Purchase and Sale Agreement, by the Servicer or the Special Servicer pursuant to
Section 3.18(b), or by the Servicer, the Special Servicer or the Holders of the
Class LR Certificates pursuant to Section 9.01) that there has been a recovery
of all Insurance and Condemnation Proceeds, Liquidation Proceeds, REO Revenue
and other payments or recoveries that, in the Special Servicer's judgment,
exercised without regard to any obligation of the Special Servicer to make
payments from its own funds pursuant to Section 3.07(b), will ultimately be
recoverable.
"Financial Market Publishers": Bloomberg, L.P., Charter Research
Corporation and Trepp Financial Group and any of their respective successors and
assigns.
"Fiscal Agent": ABN AMRO Bank N.V., a Netherlands banking corporation
and its successors and assigns.
"Fitch IBCA": Fitch IBCA, Inc. and any successor thereto.
"FNMA": Federal National Mortgage Association or any successor thereto.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls, radon
gas, petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory," "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
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"IDOT Guarantor": The guarantor under an IDOT Guaranty which is also
the mortgagor under the related indemnity deed of trust.
"IDOT Guaranty": With respect to each IDOT Loan, a guaranty of the
borrower's obligations under the IDOT Loan made by an affiliate of the related
borrower and secured by an "indemnity deed of trust" on one or more properties
in Maryland owned by such guarantor.
"IDOT Loan": Each Mortgage Loan backed by an IDOT Guaranty, as
identified on Schedule 5 attached hereto.
"Independent": When used with respect to any specified Person, any such
Person who (i) is in fact independent of the Depositor, the Servicer, the
Special Servicer, the Directing Certificateholder and any and all Affiliates
thereof, (ii) does not have any material direct financial interest in or any
material indirect financial interest in any of the Depositor, the Servicer, the
Special Servicer, the Directing Certificateholder or any Affiliate thereof and
(iii) is not connected with the Depositor, the Servicer, the Special Servicer,
the Directing Certificateholder 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 Servicer or the Special Servicer 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 Servicer, the
Special Servicer or any Affiliate thereof, as the case may be.
"Independent Appraiser": An MAI appraiser that is Independent.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust within the meaning of section
856(d)(3) of the Code if the Trust 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% 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 Trustee, the
Servicer or the Trust Fund, delivered to the Trustee and the Servicer), so long
as the Trust does not receive or derive any income from such Person and provided
that the relationship between such Person and the Trust is at arm's length, all
within the meaning of Treasury Regulation Section 1.856-4(b)(5) (except that the
Servicer or the Special Servicer shall not be considered to be an Independent
Contractor under the definition in this clause (i) unless an Opinion of Counsel
has been delivered to the Trustee to that effect, at the expense of the Person
desiring such opinion to establish that such Person is Independent) or (ii) any
other Person (including the Servicer and the Special Servicer) upon receipt by
the Trustee and the Servicer of an Opinion of Counsel, which shall be at no
expense to the Trustee, the Servicer 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.
"Initial Purchasers": PaineWebber Incorporated and Merrill Lynch,
Pierce, Fenner and Smith Incorporated.
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"Institutional Accredited Investor": As defined in Section 5.02(b).
"Insurance Policy": With respect to any Mortgage Loan, any fire and
hazard insurance policy with extended coverage, 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 and Condemnation Proceeds": All proceeds paid under any
Insurance Policy or in connection with the full or partial condemnation of a
Mortgaged Property, in either case, to the extent such proceeds are not applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor, in either case, in accordance with the Servicing Standard.
"Insured Event": As defined in Section 3.07(f).
"Interest Accrual Period": With respect to any Class of Regular
Certificates or Uncertificated Lower-Tier Interests and any Distribution Date,
the period beginning on the first day of the calendar month preceding the
calendar month in which the related Distribution Date occurs and ending on the
last day of the calendar month preceding the calendar month in which such
Distribution Date occurs.
"Interest Distribution Amount": With respect to any Class of Regular
Certificates for any Distribution Date, an amount equal to the sum of the
Distributable Certificate Interest and the Class Unpaid Interest Shortfall with
respect to such Class of Regular Certificates for such Distribution Date.
"Interest Reserve Account": The trust account created and maintained by
the Trustee pursuant to Section 3.25 on behalf of the Certificateholders, into
which the amounts set forth in Section 3.25 shall be deposited directly, and
which must be an Eligible Account.
"Interest Reserve Loans": The Mortgage Loans identified as such on
Schedule 4.
"Interested Person": The Depositor, the Servicer, the Special Servicer,
the Directing Certificateholder, any Independent Contractor engaged by the
Special Servicer, any Holder of a Certificate or any Affiliate of any such
Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"Issue Price": With respect to each Class of Certificates, the "issue
price" as defined in the REMIC Provisions.
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Due Period for such Mortgage Loan, whether as
Monthly Payments, Insurance and Condemnation Proceeds, Liquidation Proceeds or
otherwise, which represent late payments or collections of principal or interest
due in respect of such Mortgage Loan (without regard to any acceleration of
amounts due thereunder by reason of default) on a Due Date in a previous Due
Period and not previously recovered. With respect to any REO Loan, all amounts
received in connection with the related REO Property during any Due Period,
whether as Insurance and Condemnation Proceeds, Liquidation Proceeds, REO
Revenues or otherwise,
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which represent late collections of principal or interest due or deemed due in
respect of such REO Loan or the predecessor Mortgage Loan (without regard to any
acceleration of amounts due under the predecessor Mortgage Loan by reason of
default) on a Due Date in a previous Due Period and not previously recovered.
The term "Late Collections" shall specifically exclude Penalty Charges.
"Lease Enhancement Insurer": Each of Chubb Custom Insurance Company and
Lexington Insurance Company, together with any assignee, successor or subsequent
insurer.
"Lease Enhancement Policy": With respect to any CTL Loans, any
non-cancellable insurance policy issued by the Lease Enhancement Insurer to
cover certain lease termination and rent abatement (with respect to losses
arising out of a condemnation) events arising out of a casualty to, or
condemnation of, the related Mortgaged Property.
"Lease Enhancement Policy Exposure": As defined in Section 3.26(a)(i).
"Lease Enhancement Policy Termination Event": As defined in Section
3.07(f).
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by a Mortgage Loan Seller pursuant to Section 3.3 of the
related Mortgage Loan Purchase and Sale Agreement; (iv) such Mortgage Loan is
purchased by the Servicer or the Special Servicer pursuant to Section 3.18(b);
or (v) such Mortgage Loan is purchased by the Servicer, the Special Servicer or
the Holders of the Class LR Certificates 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 Servicer, the Special Servicer or the
Holders of the Class LR Certificates pursuant to Section 9.01.
"Liquidation Fee": A fee payable to the Special Servicer with respect
to each Specially Serviced Mortgage Loan with respect to which the Special
Servicer receives a full or discounted payoff from the related Mortgagor or any
Liquidation Proceeds with respect thereto, equal to the product of the
Liquidation Fee Rate and the proceeds of such full or discounted payoff or the
Liquidation Proceeds (net of the costs and expenses associated with the related
liquidation) related to such liquidated Specially Serviced Mortgage Loan, as the
case may be; provided, however, that no Liquidation Fee shall be payable with
respect to clauses (iii)-(v) of the definition of Liquidation Proceeds.
"Liquidation Fee Rate": A rate equal to 1.00%.
"Liquidation Proceeds": Cash amounts (other than Insurance and
Condemnation Proceeds and REO Revenues) received by or paid to the Servicer or
Special Servicer in connection with: (i) the full or partial liquidation of a
Mortgage Loan, 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; (ii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iii) the
purchase of a Defaulted Mortgage Loan by the Servicer or the Special Servicer
pursuant to Section 3.18(b) or any other sale thereof pursuant to Section
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3.18(c); (iv) the repurchase of a Mortgage Loan by a Mortgage Loan Seller
pursuant to Section 3.3 of the related Mortgage Loan Purchase and Sale
Agreement; or (v) the purchase of a Mortgage Loan or REO Property by the Special
Servicer or the Holders of the Class LR Certificates pursuant to Section 9.01.
"List of Approved Servicers": Any list of approved Servicers and
Special Servicers published by either Rating Agency.
"Loan Documents": With respect to each Mortgage Loan, the related
Mortgage, Mortgage Note, all other documents in the related Mortgage File and
any related agreements.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of any
date of determination, the fraction, expressed as a percentage, the numerator of
which is the scheduled principal balance of such Mortgage Loan at the time of
determination (assuming no defaults on or Principal Prepayments of the Mortgage
Loans), and the denominator of which is the Original Value of the related
Mortgaged Property.
"Lower-Tier Distribution Account": The segregated account or accounts
(or sub-account) created and maintained by the Trustee pursuant to Section
3.04(c) in trust for the Certificateholders, which shall be entitled "LaSalle
Bank National Association, as Trustee, in trust for the registered Holders of
PaineWebber Mortgage Acceptance Corporation V Commercial Mortgage Pass-Through
Certificates, Series 1999-C1, Lower-Tier Distribution Account." Any such account
or accounts (or sub-account) shall be an Eligible Account.
"Lower-Tier Distribution Amount": As defined in Section 4.01(b).
"Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests, (i) on or prior to the first Distribution
Date, an amount equal to the Original Lower-Tier Principal Amount of such Class,
and (ii) as of any date of determination after the first Distribution Date, an
amount equal to the Certificate Balance of the Class of Related Certificates on
the Distribution Date immediately prior to such date of determination
(determined as adjusted pursuant to Section 1.02(d)).
"Lower-Tier REMIC": One of two separate REMICs comprising the Trust
Fund, the assets of which consist of the Mortgage Loans, any REO Property with
respect thereto, such amounts as shall from time to time be held in the
Certificate Account, the REO Account, if any, and the Lower-Tier Distribution
Account, and all other property included in the Trust Fund that is not in the
Upper-Tier REMIC.
"MAI": Member of the Appraisal Institute.
"Maturity Date": With respect to any Mortgage Loan as of any date of
determination, the date on which the last payment of principal is due and
payable under the related Mortgage Note or Mortgage Notes, after taking into
account all Principal Prepayments received prior to such date of determination,
but without giving effect to (i) any acceleration of the principal of such
Mortgage Loan by reason of default thereunder, (ii) any grace period permitted
by the related Mortgage Note or Mortgage Notes, or (iii) any modification,
waiver or amendment of such Mortgage Loan granted or agreed to by the Servicer
or the Special Servicer pursuant to Section 3.20 occurring prior to such date of
determination.
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"Merrill Lynch Mortgage Capital": Merrill Lynch Mortgage Capital Inc.,
a Delaware corporation, and its successors and assigns.
"Merrill Lynch Mortgage Loans": Mortgage Loans purchased by the
Depositor from Merrill Lynch Mortgage Capital pursuant to the ML Mortgage Loan
Purchase and Sale Agreement.
"ML Mortgage Loan Purchase and Sale Agreement": The mortgage loan
purchase and sale agreement dated as of the Cut-off Date between the Depositor
and Merrill Lynch Mortgage Capital, pursuant to which Merrill Lynch Mortgage
Capital transfers to the Depositor all of its right, title and interest in and
to the Merrill Lynch Mortgage Loans.
"Monthly Payment": With respect to any Mortgage Loan, the scheduled
monthly payment of principal and/or interest on such Mortgage Loan, including
any Balloon Payment, which is payable by a Mortgagor from time to time under the
related Mortgage Note and applicable law, without regard to any acceleration of
principal of such Mortgage Loan by reason of default thereunder or any
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Servicer or the Special Servicer pursuant to Section 3.20.
"Moody's": Moody's Investors Service, Inc. and its successors and
assigns.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust or other instrument securing a Mortgage Note and creating a lien on the
fee or leasehold interest in the related Mortgaged Property. It is understood
that the term "Mortgage" includes the "indemnity deed of trust" securing each
IDOT Guaranty.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as of
any Due Date that has been modified to reduce the rate at which interest is paid
currently below the rate at which interest accrues on such Mortgage Loan, the
excess, if any, of (a) interest accrued on the Stated Principal Balance thereof
during the one-month interest accrual period set forth in the related Mortgage
Note at the related rate of accrual over (b) the interest portion of the related
Monthly Payment, as so modified or reduced, or, if applicable, the Assumed
Scheduled Payment due on such Due Date.
"Mortgage File": With respect to any Mortgage Loan, but subject to
Section 2.01, collectively the following documents:
(i) each original Mortgage Note (including, in the case of each
IDOT Loan, the note originally made by the borrower in favor of the
related originator and the note made by the IDOT Guarantor under the
related IDOT Guaranty in favor of the borrower under such IDOT Loan),
bearing, or accompanied by, all prior and intervening endorsements or
assignments showing a complete chain of endorsement or assignment from
the originator of the Mortgage Loan to a Mortgage Loan Seller, and
further endorsed (at the direction of the Depositor given pursuant to
the applicable Mortgage Loan Purchase and Sale Agreement), on its face
or by allonge attached thereto, without recourse, to the order of the
Trustee in the following form: "Pay to the order of LaSalle Bank
National Association, as trustee for the registered Holders of
PaineWebber Mortgage Acceptance Corporation V Commercial Mortgage
Pass-Through Certificates,
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Series 1999-C1, without recourse, representation or warranty,
express or implied" or in blank;
(ii) the original Mortgage (or a certified copy thereof from the
applicable recording office) and originals (or certified copies from
the applicable recording office) of any intervening assignments thereof
showing a complete chain of assignment from the originator of the
Mortgage Loan to the applicable Mortgage Loan Seller, in each case with
evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form,
to "LaSalle Bank National Association, as trustee for the registered
Holders of PaineWebber Mortgage Acceptance Corporation V Commercial
Mortgage Pass-Through Certificates, Series 1999-C1" or in blank;
(iv) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and the originals
or copies of any intervening assignments thereof showing a complete
chain of assignment from the originator of the Mortgage Loan to the
applicable Mortgage Loan Seller, in each case with evidence of
recording thereon;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in recordable
form, executed by the applicable Mortgage Loan Seller to "LaSalle Bank
National Association, as Trustee for the benefit of Certificateholders
of PaineWebber Commercial Mortgage Pass-Through Certificates, Series
1999-C1" or in blank;
(vi) an original or copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and the originals
or copies of any intervening assignments thereof showing a complete
chain of assignment from the originator of the Mortgage Loan (if
different than the applicable Mortgage Loan Seller) to the applicable
Mortgage Loan Seller, in each case with evidence of recording thereon;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), in recordable
form, executed by the applicable Mortgage Loan Seller to "LaSalle Bank
National Association, as Trustee for the benefit of Certificateholders
of PaineWebber Commercial Mortgage Pass-Through Certificates, Series
1999-C1" or in blank;
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements, with
evidence of recording thereon, where appropriate, in those instances
where the terms or provisions of the Mortgage, Mortgage Note or any
related security document have been consolidated or modified or the
Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof effective as of the date of the recordation of the Mortgage
Loan, together with all endorsements or riders that were issued with or
subsequent to the issuance of such policy, insuring the priority of the
Mortgage as a first lien on the Mortgagor's fee
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interest in the Mortgaged Property, or if the policy has not yet
been issued, an original or copy of a written commitment, interim
binder or the pro forma title insurance policy, dated as of the date on
which the related Mortgage Loan was funded;
(x) the original or a copy of any guaranty (other than the IDOT
Guaranty) of the obligations of the Mortgagor under the Mortgage Loan;
(xi) all UCC Financing Statements and continuation statements or
copies thereof sufficient to perfect (and maintain the perfection of)
the security interest held by the originator of the Mortgage Loan (and
each assignee prior to the Trustee) in and to the personality of the
Mortgagor at the Mortgaged Property (in each case with evidence of
filing thereon), and to transfer such security interest to the Trustee;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the
Mortgage, any Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loan with Additional Debt that
is subordinate to such Mortgage Loan, as indicated on Schedule 1, a
subordination agreement, pursuant to which such Additional Debt is
subordinated to such Mortgage Loan; and
(xiv) a survey of the related Mortgaged Property;
(xv) in the case of an IDOT Loan, an original of the related IDOT
Guaranty;
(xvi) in the case of a CTL Loan, the original Residual Value
Policy and/or Lease Enhancement Policy, if any, endorsed to the
Trustee;
(xvii) the original or copy of any related cash management
agreements and lockbox agreements, if any;
(xviii) the original or copy of any related environmental reports;
(xix) the original or copy of any related Sub-Servicing Agreement,
if any;
(xx) the original or copy of any related ground leases; and
(xxi) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
provided, however, that whenever the term "Mortgage File" is used to refer to
documents actually received by the Trustee, or a Custodian appointed thereby,
such term shall not be deemed to include such documents and instruments required
to be included therein unless they are actually so received.
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"Mortgage Loan": Each of the mortgage loans transferred and assigned to
the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. It is understood that the term "Mortgage Loan" includes each IDOT Loan and
each IDOT Guaranty. References to "Mortgage Loan" shall be deemed to include
references to REO Loans, to the extent applicable.
"Mortgage Loan Purchase and Sale Agreement": each of the ML Mortgage
Loan Purchase and Sale Agreement and PW Mortgage Loan Purchase and Sale
Agreement, together "Mortgage Loan Purchase and Sale Agreements."
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on the
Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan I.D. number (as specified in Annex A to the
Prospectus);
(ii) (a) the name and (b) type of the related Mortgaged Property;
(iii) the name of the originator of the Mortgage Loan;
(iv) the street address (including city, state and zip code) of
the related Mortgaged Property;
(v) the Mortgage Rate in effect at origination and whether or not
such Mortgage Rate is a fixed rate or a floating rate;
(vi) the Net Mortgage Rate in effect at the Cut-off Date;
(vii) the original principal balance;
(viii) the Cut-off Date Principal Balance;
(ix) the Maturity Date principal balance based on information
contained in such Mortgage;
(x) the (a) original term to stated maturity, (b) remaining term
to stated maturity and (c) Maturity Date;
(xi) the Anticipated Repayment Date, and the Revised Rate, if
applicable;
(xii) the original amortization term;
(xiii) the first Due Date;
(xiv) the amount of the Monthly Payment due on the first Due Date
following the related Cut-off Date;
(xv) the Original Value of the related Mortgaged Property;
(xvi) the Loan-to-Value Ratio at the Cut-off Date;
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(xvii) the Underwritten Debt Service Coverage Ratio;
(xviii) the applicable Servicing Fee Rate and the Excess Fixed
Yield Rate;
(xix) whether the Mortgage Loan is an Actual/360 Mortgage Loan;
(xx) whether the Mortgage Loan is a 30/360 Mortgage Loan;
(xxi) whether the Mortgage Loan may be defeased;
(xxii) whether the Mortgage Loan is an IDOT Loan;
(xxiii) whether the Mortgage Loan is a CTL Loan, and if so whether
the Mortgage Loan has the benefit of a Residual Value Policy and/or a
Lease Enhancement Policy; and
(xxiv) a brief description of provisions governing prepayment
penalties, Prepayment Premiums, Yield Maintenance Charges and related
lockout periods.
"Mortgage Loan Seller": Each of Merrill Lynch Mortgage Capital and
PaineWebber Real Estate Securities, together the "Mortgage Loan Sellers."
"Mortgage Note": The original executed note evidencing all or a portion
of the indebtedness of a Mortgagor under a Mortgage Loan, together with any
rider, addendum or amendment thereto. With respect to an IDOT Loan the Mortgage
Note will be deemed to consist collectively of (i) the note executed by the
borrower evidencing its indebtedness under the related IDOT Loan and (ii) the
note executed by the IDOT Guarantor evidencing its indebtedness to the related
borrower in an amount equal to the indebtedness of the borrower under the IDOT
Loan.
"Mortgage Rate": With respect to: (i) any Mortgage Loan on or prior to
its Maturity Date, the annualized rate at which interest is scheduled (in the
absence of a default) to accrue on such Mortgage Loan in accordance with the
related Mortgage Note as of the Cut-off Date and applicable law, exclusive of
the Excess Rate; (ii) any Mortgage Loan after its Maturity Date, the annualized
rate described in clause (i) above determined without regard to the passage of
such Maturity Date; provided, however, for purposes of the preceding clause (i)
and (ii) 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 Class X Pass-Through Rate, the A-1 Component Pass-Through Rate,
the A-2 Component Pass-Through Rate, the B Component Pass-Through Rate, the C
Component Pass-Through Rate, the D-E Component Pass-Through Rate, the F-I
Component Pass-Through Rate and the limit on the Pass-Through Rate of each other
Class of Regular Certificates contained in the proviso to their respective
definition of the Pass-Through Rate (other than the Class A and Class X
Certificates), 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 Default Interest or Excess Interest or
any modifications to the interest rate of such Mortgage Loan after the Cut-off
Date) in respect of such Mortgage Loan during such one-month period at the
related Mortgage Rate; further provided, that, with respect to each Interest
Reserve Loan, the Mortgage Rate for the one month period (A) preceding the
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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 in any year, will be the per
annum rate stated in the related Mortgage Note or Mortgage Notes as of the
Cut-off Date.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation any IDOT Guarantor and any other Person that owns or has
acquired the related Mortgaged Property and/or assumed the obligations of the
original obligor under the Mortgage Note.
"Net Investment Earnings": With respect to either the Certificate
Account, the Interest Reserve Account or any REO Account for any period from any
Distribution Date to the immediately succeeding Servicer Remittance Date, the
amount, if any, by which the aggregate of all interest and other income realized
during such period on funds relating to the Trust Fund held in such account,
exceeds the aggregate of all losses, if any, incurred during such period in
connection with the investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to either the Certificate Account,
the Interest Reserve Account or any REO Account for any period from any
Distribution Date to the immediately succeeding Servicer Remittance Date, the
amount by which the aggregate of all losses, if any, incurred during such period
in connection with the investment of funds relating to the Trust Fund held in
such account in accordance with Section 3.06, exceeds the aggregate of all
interest and other income realized during such period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan, as
of any date of determination, a rate per annum equal to the related Mortgage
Rate minus the sum of (i) the related Servicing Fee Rate and (ii) the Excess
Fixed Yield Rate.
"Net Operating Income": With respect to any Mortgaged Property, for any
Mortgagor's fiscal year end, the total operating revenues derived from such
Mortgaged Property during such period, minus (i) the total operating expenses
incurred in respect of such Mortgaged Property during such period and (ii)
capital expenditures for annual estimated replacement reserves, tenant
improvements and leasing commissions, in each case excluding certain
non-operating expenses such as depreciation, amortization, partnership
distributions and financing fees.
"New Lease": Any lease of REO Property entered into at the direction of
the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust has the right to
renegotiate the terms of such lease.
"Non-Public Certificate": Unless and until registered under the
Securities Act, any Class E, Class F, Class G, Class H, Class I, Class R or
Class LR Certificate.
"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 a Mortgage Loan or REO Loan which, in the
judgment of the Servicer,
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the Trustee or the Fiscal Agent, as applicable, will not be ultimately
recoverable, together with any accrued and unpaid interest thereon, from Late
Collections or any other recovery on or in respect of such Mortgage Loan or REO
Loan, taking into account any Lease Enhancement Policy Exposure or Residual
Value Policy Exposure as determined by the Servicer (and if provided by the
Servicer to the Trustee and the Fiscal Agent, in the case of an Advance made by
the Trustee or Fiscal Agent). The determination by the Servicer, the Trustee or
the Fiscal Agent, as applicable, that it has made a Nonrecoverable P&I Advance
or that any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I
Advance, shall be evidenced by an Officer's Certificate delivered to the Trustee
and the Depositor, in the case of the Servicer or the Fiscal Agent, and to the
Depositor, in the case of the Trustee. The Officer's Certificate shall set forth
such determination of nonrecoverability and the considerations of the Servicer,
the Trustee or Fiscal Agent, as applicable, forming the basis of such
determination (which shall include but shall not be limited to information, to
the extent available, such as related income and expense statements, rent rolls,
occupancy status and property inspections, and shall include an Appraisal of the
related Mortgage Loan or Mortgaged Property done within the last twelve months,
the cost of which Appraisal shall be advanced by the Servicer or the Trustee or
Fiscal Agent, as applicable, as a Servicing Advance). The Trustee and the Fiscal
Agent shall each be entitled to conclusively rely on the Servicer's
determination that a P&I Advance is nonrecoverable and the Fiscal Agent shall be
entitled to conclusively rely on the Servicer's and/or Trustee's determination
that a P&I Advance is nonrecoverable.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property which,
in the judgment of the Servicer, the Trustee or the Fiscal Agent, as the case
may be, will not be ultimately recoverable, together with any accrued and unpaid
interest at the Reimbursement Rate thereon, from Late Collections or any other
recovery on or in respect of such Mortgage Loan or REO Property. The
determination by the Servicer, the Trustee or the Fiscal Agent, as the case may
be, that it has made a Nonrecoverable Servicing Advance or that any proposed
Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance,
shall be evidenced by an Officer's Certificate delivered to the Trustee, the
Depositor and the Fiscal Agent, in the case of the Servicer, and to the
Depositor and the Fiscal Agent, in the case of the Trustee. The Officer's
Certificate shall set forth such determination of nonrecoverability and the
considerations of the Servicer, the Trustee or the Fiscal Agent, as applicable,
forming the basis of such determination (which shall include but shall not be
limited to information, to the extent available, such as related income and
expense statements, rent rolls, occupancy status and property inspections, and
shall include an Appraisal of the related Mortgage Loan or Mortgaged Property,
the cost of which Appraisal shall be advanced by the Servicer or the Trustee or
Fiscal Agent, as applicable, as a Servicing Advance). The Trustee will be
entitled to conclusively rely on the Servicer's determination that a Servicing
Advance is nonrecoverable and the Fiscal Agent shall be entitled to conclusively
rely on the Servicer's and/or the Trustee's determination that a Servicing
Advance is nonrecoverable.
"Non-U.S. Person": Any person other than a U.S. Person, unless, with
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Certificate
Registrar with an effective Internal Revenue Service Form 4224 or (ii) the
Transferee delivers to both the Transferor and the Certificate Registrar an
opinion of a tax counsel reasonably acceptable to the Depositor and the
Certificate Registrar to the effect that
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such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes.
"Notional Amount": The A-1 Notional Amount, the A-2 Notional Amount,
the B Notional Amount, the C Notional Amount, the D-E Notional Amount or the F-I
Notional Amount, as the case may be.
"NRSRO": A nationally recognized statistical rating organization.
"Offered Certificates": The Class A, Class B, Class C, Class D and
Class X Certificates.
"Officer's Certificate": A certificate signed by a Servicing Officer of
the Servicer or the Special Servicer, as the case may be, or a Responsible
Officer of the Trustee or the Fiscal Agent, as the case may be.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for or counsel routinely retained by the
Depositor, the Servicer or the Special Servicer, acceptable in form and
delivered to the Trustee, except that any opinion of counsel relating to (a) the
qualification of the Upper-Tier REMIC or Lower-Tier REMIC as a REMIC or the
imposition of a tax thereon, (b) compliance with the REMIC Provisions, (c) the
resignation of the Servicer, the Special Servicer or the Depositor pursuant to
Section 6.04, (d) the determination of who is an Independent Contractor for
purposes of Section 856(d)(3) of the Code, (e) whether REO Property will
constitute "foreclosure property" for purposes of Section 860G(a)(8) of the
Code, (f) whether an extension of a Mortgage Loan would constitute a
"significant modification" within the meaning of Treasury Regulations Section
1.860G-2(b) or (g) whether the liquidation of assets of the Trust constitutes a
"qualified liquidation" for purposes of Section 860F(a)(4) of the Code, must be
an opinion of counsel who is in fact Independent of the Depositor, the Servicer,
the Special Servicer or the Directing Certificateholder, as applicable.
"Original Certificate Balance": With respect to any Class of Regular
Certificates (other than the Class X Certificates), the initial aggregate
principal amount thereof as of the Closing Date, in each case as specified in
the Preliminary Statement.
"Original Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interest, the initial principal amount thereof as of
the Closing Date, in each case as specified herein.
"Original Notional Amount": With respect to the A-1 Component, the A-2
Component, the B Component, the C Component, the D-E Component or the F-I
Component, the respective initial aggregate Notional Amount thereof as of the
Closing Date, in each case as specified in footnote (3) in the Preliminary
Statement.
"Original Value": The Appraised Value of a Mortgaged Property based
upon the Appraisal conducted in connection with the origination of the related
Mortgage Loan.
"OTS": The Office of Thrift Supervision or any successor thereto.
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"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.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made by
the Servicer, the Trustee or the Fiscal Agent, as applicable, pursuant to
Section 3.26, Section 4.03 or Section 7.05.
"P&I Advance Determination Date": With respect to any Distribution
Date, the second Business Day prior to such Distribution Date.
"Paine Webber Real Estate Securities": Paine Webber Real Estate
Securities Inc., a Delaware corporation, and its successors and assigns.
"PaineWebber Mortgage Loans": Mortgage Loans purchased by the Depositor
from Paine Webber Real Estate Securities pursuant to the PW Mortgage Loan
Purchase and Sale Agreement.
"Pass-Through Rate": Any of the Class A-1 Pass-Through Rate, the Class
A-2 Pass-Through Rate, the Class B Pass-Through Rate, the Class C Pass-Through
Rate, the Class D Pass-Through Rate, the Class E Pass-Through Rate, the Class F
Pass-Through Rate, the Class G Pass-Through Rate, the Class H Pass-Through Rate,
the Class I Pass-Through Rate, the A-1 Component Pass-Through Rate, the A-2
Component Pass-Through Rate, the B Component Pass-Through Rate, the C Component
Pass-Through Rate, the D-E Component Pass-Through Rate and the F-I Component
Pass-Through Rate.
"Paying Agent": The paying agent appointed pursuant to Section 5.06.
"Penalty Charges": With respect to any Mortgage Loan (or successor REO
Loan), any amounts actually collected thereon from the Mortgagor that represent
late payment charges or Default Interest, other than a Yield Maintenance Charge,
Prepayment Premium or Excess Interest.
"Percentage Interest": As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made with respect to the
related Class. With respect to any Regular Certificate, the percentage interest
is equal to the Denomination of such Certificate divided by the Original
Certificate Balance or initial Notional Amount, as applicable, of such Class of
Certificates as of the Closing Date. With respect to a Residual Certificate, the
Percentage Interest is set forth on the face thereof.
"Permitted Investments": Any one or more of the following obligations
or securities, regardless of whether issued by the Depositor, the Servicer, the
Special Servicer, the Trustee, the Fiscal Agent or any of their respective
Affiliates and having the required ratings, if any, provided for in this
definition:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of
America, FNMA, FHLMC or any agency or instrumentality of the United
States of America, the obligations of which are backed by the full
faith and credit of the United States of America that mature in one
year or less after the date of issuance; provided,
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however, that any obligation of, or guarantee by, FNMA or FHLMC,
other than an unsecured senior debt obligation of FNMA or FHLMC, shall
be a Permitted Investment only if such investment would not result in
the downgrading, withdrawal or qualification of the then-current rating
assigned by each Rating Agency to any Certificate, as evidenced in
writing by each Rating Agency;
(ii) time deposits, unsecured certificates of deposit, or bankers'
acceptances that mature in 1 year or less after the date of issuance
and are issued or held by any depository institution or trust company
(including the Trustee) incorporated or organized under the laws of the
United States of America or any State thereof and subject to
supervision and examination by federal or state banking authorities, so
long as the commercial paper or other short-term debt obligations of
such depository institution or trust company (a) (i) are rated at least
"P-1" by Moody's and (ii) "F-1+" by Fitch IBCA (if rated by Fitch IBCA)
or would not result in the downgrading, withdrawal or qualification of
the then-current rating assigned by each Rating Agency to any
Certificate, as evidenced in writing by each Rating Agency;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a
remaining maturity of 1 year or less and where such repurchase
obligation has been entered into with a depository institution or trust
company (acting as principal) described in clause (ii) above;
(iv) debt obligations bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States of America or any state thereof which mature in one year or less
from the date of issuance, which securities have (i) ratings from Fitch
IBCA at least equal to "AA-" and from Moody's at least equal to the
minimum maturity-base ratings described below or (ii) such other
ratings (as confirmed by the applicable Rating Agency in writing) as
will not result in a downgrade, qualification or withdrawal of the
then-current rating of the Certificates that are currently being rated
by such Rating Agency; provided, however, that securities issued by any
particular corporation will not be Permitted Investments to the extent
that investment therein will cause the then-outstanding principal
amount of securities issued by such corporation and held in the
accounts established hereunder to exceed 10% of the sum of the
aggregate principal balance and the aggregate principal amount of all
Permitted Investments in such accounts;
(v) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations) payable on demand or on a
specified date maturing in 1 year or less after the date of issuance
thereof and which is rated at least "P-1" by Moody's and "F-1+" by
Fitch IBCA;
(vi) units of investment funds that maintain a constant net asset
value, money market funds, rated "Aaa" by Moody's and "AAA" by Fitch
IBCA;
(vii) any other demand, money market or time deposit, obligation,
security or investment, (a) with respect to which each Rating Agency
shall have
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confirmed in writing that such investment will not result in a
downgrade, qualification or withdrawal of the then-current rating of
the Certificates that are currently being rated by such Rating Agency
and (b) which qualifies as a "cash flow investment" pursuant to Section
860G(a)(6) of the Code;
provided, however, (a) in each case, the minimum maturity-based ratings by
Moody's for investments are: (i) if the investment matures within one month,
"A2" or "P-1"; (ii) if the investment matures more than one month later but
within three months, "A1" and "P-1"; (iii) if the investment matures more than
three months but within six months, "Aa3" and "P-1"; and (iv) if the investment
matures more than six months later, "Aa2" and "P-1"; (b) no such instrument
shall be a Permitted Investment (i) if such instrument evidences principal and
interest payments derived from obligations underlying such instrument and the
interest payments with respect to such instrument provide a yield to maturity at
the time of acquisition of greater than 120% of the yield to maturity at par of
such underlying obligations or (ii) if such instrument may be redeemed at a
price below the purchase price; and (c) no amount beneficially owned by either
the Upper-Tier REMIC or the Lower-Tier REMIC (even if not yet deposited in the
Trust) may be invested in investments (other than money market funds) treated as
equity interests for federal income tax purposes, unless the Servicer receives
an Opinion of Counsel, at its own expense, to the effect that such investment
will not adversely affect the status of either the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC under the Code or result in the imposition of a tax
on such Upper-Tier REMIC or Lower-Tier REMIC. Permitted Investments that are
subject to prepayment or call may not be purchased at a price in excess of par.
"Person": Any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Plan": As defined in Section 5.02(c).
"Policy Escrow Account": The trust account created and maintained by
the Servicer pursuant to Section 3.26(a) on behalf of the Certificateholders, in
which the amounts set forth in Section 3.26(a) shall be deposited directly, and
which must be an Eligible Account.
"Prepayment Assumption": A "constant prepayment rate" of 0% used for
determining the accrual of original issue discount, market discount and premium,
if any, on the Certificates for federal income tax purposes, assuming that each
Mortgage Loan with an Anticipated Repayment Date prepays on such date.
"Prepayment Interest Shortfall": With respect to any Distribution Date
and any Mortgage Loan as to which the related Mortgagor has made a Principal
Prepayment during the related Due Period but not on a Due Date, an amount equal
to the positive difference, if any, between (a) the interest that would have
been payable on such Mortgage Loan at the Net Mortgage Rate on the Due Date
following the Principal Prepayment had such principal prepayment not been made
and (b) the interest actually paid by the related Mortgagor on such Mortgage
Loan during the Due Period in which such Principal Prepayment was made. Such
amount will be calculated without taking into account any Prepayment Premiums or
Yield Maintenance Charges collected with respect to any Mortgage Loans.
Prepayment Interest Shortfalls with respect to each Distribution Date to the
extent not offset by (i) the portion of the
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Servicing Fee not applied to pay the Trustee Fee or (ii) the Excess Fixed Yield
will be allocated to each Class of Certificates pro rata based on such Class'
Accrued Certificate Interest (without taking into account the amount of
Prepayment Interest Shortfalls allocated to such Class on such Distribution
Date) for such Distribution Date. The aggregate amount of Prepayment Interest
Shortfalls with respect to any Distribution Date shall be offset by the Servicer
up to an amount equal to the aggregate of (i) the Servicing Fee (net of that
portion of the Servicing Fee that represents compensation to the Trustee) to
which the Servicer would otherwise be entitled on such Distribution Date and
(ii) the Excess Fixed Yield that would otherwise be distributable pursuant to
Section 4.01(k). The amount of any such Prepayment Interest Shortfall shall be
offset by (i) the Servicing Fee (net of that portion of the Servicing Fee that
represents compensation to the Trustee) and (ii) the Excess Fixed Yield, pro
rata, based upon the respective amounts payable to the Servicer and the owner of
such Excess Fixed Yield. Any portion of the Servicing Fee or the Excess Fixed
Yield used to cover Prepayment Interest Shortfalls will not be reimbursable to
the Servicer (or the owner of such Excess Fixed Yield) and will not be
considered to be an Advance.
"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.
"Principal Distribution Amount": With respect to any Distribution Date,
an amount equal to the sum of (a) the Scheduled Principal Distribution Amount
for such Distribution Date, (b) the Unscheduled Principal Distribution Amount
for such Distribution Date and (c) the Principal Shortfall for such Distribution
Date.
"Principal Prepayment": Any payment of principal made by the Mortgagor
on a Mortgage Loan which is received in advance of its scheduled Due Date and
which is not accompanied by an amount of interest representing scheduled
interest due on any date or dates in any month or months subsequent to the month
of prepayment.
"Principal Shortfall": For any Distribution Date after the initial
Distribution Date, the amount, if any, by which (a) the related Principal
Distribution Amount for the preceding Distribution Date, exceeded (b) the
aggregate amount distributed in respect of principal on the Class A, Class B,
Class C, Class D, Class E, Class F, Class G, Class H and Class I Certificates
for such preceding Distribution Date pursuant to Section 4.01(a) on such
preceding Distribution Date. The Principal Shortfall for the initial
Distribution Date will be zero.
"Prospectus": The Prospectus dated March 25, 1999, as supplemented by
the Prospectus Supplement dated June 1, 1999 relating to the offering of the
Offered Certificates.
"Purchase Price": With respect to any Mortgage Loan to be purchased by
either Mortgage Loan Seller pursuant to the ML Mortgage Loan Purchase and Sale
Agreement or the PW Mortgage Loan Purchase and Sale Agreement, as applicable, by
the Servicer, the Special Servicer or the Controlling Class Certificateholders
pursuant to Section 3.18(b), or by the Servicer, the Special Servicer or the
Holders of the Class LR Certificates pursuant to Section 9.01 or to be otherwise
sold pursuant to Section 3.18(c), a price equal to:
(i) the outstanding principal balance of such Mortgage Loan as of
the date of purchase; plus
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(ii) all accrued and unpaid interest on such Mortgage Loan at the
related Mortgage Rate to but not including the Due Date in the Due
Period of purchase; plus
(iii) all related unreimbursed Servicing Advances and accrued and
unpaid interest on related Advances at the Reimbursement Rate (except
where the Servicer is the purchaser), all related unreimbursed
Servicing Advances made by the Trustee or Fiscal Agent and accrued and
unpaid interest on related Advances made by the Trustee or Fiscal Agent
at the Reimbursement Rate and unpaid Special Servicing Fees allocable
to such Mortgage Loan; plus
(iv) if such Mortgage Loan is being purchased by either Mortgage
Loan Seller pursuant to Section 3.3 of the ML Mortgage Loan Purchase
and Sale Agreement or the PW Mortgage Loan Purchase and Sale Agreement,
as applicable, all reasonable out-of-pocket expenses reasonably
incurred or to be incurred by the Servicer, the Special Servicer, the
Depositor and the Trustee in respect of the Breach or Defect giving
rise to the repurchase obligation, including any expenses arising out
of the enforcement of the repurchase obligation.
With respect to any REO Property to be sold pursuant to Section 3.18(c), the
amount calculated in accordance with the preceding sentence in respect of the
related REO Loan. With respect to any REO Property to be repurchased pursuant to
Section 9.01, the amount calculated in accordance with the first paragraph
thereof in respect of the related REO Loan.
"PW Mortgage Loan Purchase and Sale Agreement": The mortgage loan
purchase and sale agreement dated as of the Cut-off Date between the Depositor
and Paine Webber Real Estate Securities, pursuant to which Paine Webber Real
Estate Securities transfers all of its right, title and interest in and to the
PaineWebber Mortgage Loans.
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": (i) With respect to any Mortgage Loan, REO Loan or
REO Property, an insurance company or security or bonding company qualified to
write the related Insurance Policy in the relevant jurisdiction with a minimum
claims paying ability rating of at least "A2" by Moody's and "A" by Fitch IBCA
(if then rated by Fitch) 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 ratings below the rating assigned to the then highest rated outstanding
Certificate, but in no event lower than "Baa3" by Moody's and "A" by Fitch IBCA
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.
"Rated Final Distribution Date": As to each Class of Certificates, June
15, 2032, which is the first Distribution Date after the 36th 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.
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"Rating Agency": Each of Moody's and Fitch IBCA or their respective
successors in interest. If neither such rating agency nor any successor remains
in existence, "Rating Agency" shall be deemed to refer to such other NRSRO or
other comparable Person designated by the Depositor, notice of which designation
shall be given to the Trustee, the Fiscal Agent, the Servicer and the Special
Servicer, and specific ratings of Moody's and Fitch herein referenced shall be
deemed to refer to the equivalent ratings of the party so designated.
"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.
"Registrar Office": As defined in Section 5.02(a).
"Regular Certificate": Any of the Class A, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class I and Class X Certificates.
"Reimbursement Rate": The rate per annum (compounded monthly)
applicable to the accrual of interest on Servicing Advances in accordance with
Section 3.03(d) and P&I Advances in accordance with Section 4.03(d), which rate
per annum shall equal the "Prime Rate" published in the "Money Rates" section of
the New York edition of "The Wall Street Journal" (or, if such section or
publication is no longer available, such other comparable publication as
determined by the Trustee in its reasonable discretion) as of each related
Determination Date, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Trustee in its reasonable discretion) as
of each related Determination Date.
"Related Certificates" and "Related Uncertificated Lower-Tier
Interest": For the following Classes of Uncertificated Lower-Tier Interests, the
related Class of Certificates set forth below and for the following Classes of
Certificates, the related Class of Uncertificated Lower-Tier Interests set forth
below:
Related Uncertificated
Related Certificate Lower-Tier Interest
------------------- -------------------
Class A-1 Certificate Class LA-1 Uncertificated Interest
Class A-2 Certificate Class LA-2 Uncertificated Interest
Class B Certificate Class LB Uncertificated Interest
Class C Certificate Class LC Uncertificated Interest
Class D Certificate Class LD Uncertificated Interest
Class E Certificate Class LE Uncertificated Interest
Class F Certificate Class LF Uncertificated Interest
Class G Certificate Class LG Uncertificated Interest
Class H Certificate Class LH Uncertificated Interest
Class I Certificate Class LI Uncertificated Interest
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Provisions": Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and temporary and final Treasury Regulations (or proposed regulations that would
apply by reason of their proposed effective date to the extent not inconsistent
with temporary or final regulations) and any rulings promulgated thereunder, as
the foregoing may be in effect from time to time.
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"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 custodial account or accounts (or
subaccounts) 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 "Banc One Mortgage Capital Markets, LLC, as Special Servicer, in
trust for registered Holders of PaineWebber Mortgage Acceptance Corporation V
Commercial Mortgage Pass-Through Certificates, Series 1999-C1, REO Account." Any
such account or accounts shall be an Eligible Account.
"REO Acquisition": The acquisition for federal income tax purposes of
any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed to
be outstanding for so long as the related REO Property remains part of the Trust
Fund, as providing for Assumed Scheduled Payments on each Due Date therefor, and
otherwise as having the same terms and conditions as its predecessor Mortgage
Loan, including, without limitation, with respect to the calculation of the
Mortgage Rate (such terms and conditions to be applied without regard to the
default on such predecessor Mortgage Loan). Each REO Loan shall be deemed to
have an initial outstanding principal balance and Stated Principal Balance equal
to the outstanding principal balance and Stated Principal Balance, respectively,
of its predecessor Mortgage Loan as of the date of the related REO Acquisition.
All amounts due and owing in respect of the predecessor Mortgage Loan as of the
date of the related REO Acquisition, including, without limitation, accrued and
unpaid interest, shall continue to be due and owing in respect of an REO Loan.
All amounts payable or reimbursable to the Servicer, the Special Servicer, the
Fiscal Agent, the Trustee or the holder of the Excess Fixed Yield, as
applicable, in respect of the predecessor Mortgage Loan as of the date of the
related REO Acquisition, including, without limitation, any unpaid Special
Servicing Fees, Servicing Fees, Excess Fixed Yield and any unreimbursed
Advances, together with any interest accrued and payable to the Servicer, the
Fiscal Agent or the Trustee in respect of such Advances in accordance with
Section 3.03(d) or Section 4.03(d), shall continue to be payable or reimbursable
to the Servicer, the Special Servicer, the Trustee or the Fiscal Agent in
respect of an REO Loan. Collections in respect of each REO Loan (exclusive of
amounts to be applied to the payment of, or to be reimbursed to the Servicer or
the Special Servicer for the payment of, the costs of operating, managing and
maintaining the related REO Property) shall be treated: first, as a recovery of
accrued and unpaid interest on such REO Loan at the related Mortgage Rate to but
not including the Due Date in the Due Period of receipt; second, as a recovery
of principal of such REO Loan to the extent of its entire unpaid principal
balance; and third, in accordance with the Servicing Standard, 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
Charges and (ii) Excess Interest and other amounts, in that order.
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"REO Loan Accrual Period": With respect to any REO Loan and any Due
Date therefor, the one-month period immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special Servicer
on behalf of, 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 and profits derived from the
ownership, operation or leasing of any REO Property.
"Request for Release": A release signed by a Servicing Officer of the
Servicer or the Special Servicer, as applicable, in the form of Exhibit F
attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR Certificate
issued, authenticated and delivered hereunder.
"Residual Value Insurer": Each of R.V.I. America Insurance Company and
Financial Structures Limited, together with any assignee, successor or
subsequent insurer.
"Residual Value Policy": Any insurance policy issued by the Residual
Value Insurer to insure against any diminution in the value of the related
Mortgaged Properties at the maturity of the related Loan as a result of changes
in market conditions.
"Residual Value Policy Exposure": As defined in Section 3.26(a)(i).
"Residual Value Policy Termination Event": As defined in Section
3.07(f).
"Responsible Officer": When used with respect to the initial Trustee or
Fiscal Agent or Certificate Registrar, any vice president, assistant vice
president, corporate trust officer or assistant corporate trust officer in the
Asset-Backed Securities Trust Services Group of LaSalle Bank National
Association, or ABN AMRO Bank N.V., as the case may be, with direct
responsibility for the administration of this Agreement, and with respect to any
successor Trustee or Fiscal Agent, any officer in the corporate trust department
of the Trustee or Fiscal Agent, as the case may be, or any other officer of the
Trustee or Fiscal Agent customarily performing functions similar to those
performed by any of the above designated officers to whom a particular matter is
referred by the Trustee or Fiscal Agent because of such officer's knowledge of
and familiarity with the particular subject.
"Revised Rate": With respect to the Mortgage Loans, the increased
interest rate after the Anticipated Repayment Date (in the absence of a default)
for each applicable Mortgage Loan, as calculated and as set forth in the related
Mortgage Loan documents.
"S&P": Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. and its successors and assigns.
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of the principal portions of (a) all Monthly
Payments (excluding Balloon Payments) due in respect of the Mortgage Loans
during or, if and to the extent not previously received or advanced pursuant to
Section 4.03 in respect of a preceding Distribution Date, prior
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to the related Due Period, and all Assumed Scheduled Payments for the related
Due Period, in each case to the extent either (i) paid by the Mortgagor as of
the Business Day preceding the related Servicer Remittance Date (and not
previously distributed to Certificateholders) or (ii) advanced by the Servicer,
the Trustee or the Fiscal Agent, as applicable, pursuant to Section 4.03 in
respect of such Distribution Date, and (b) all Balloon Payments to the extent
received during the related Due Period, and to the extent not included in clause
(a) above.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any security
agreement or equivalent instrument, whether contained in the related Mortgage or
executed separately, creating in favor of the holder of such Mortgage a security
interest in the personal property constituting security for repayment of such
Mortgage Loan.
"Senior Principal Distribution Cross-Over Date": The first Distribution
Date as of which the aggregate Certificate Balances of the Subordinate Classes
have been reduced to zero as a result of the application of Collateral Support
Deficits.
"Servicer": Banc One Mortgage Capital Markets, LLC, a Delaware limited
liability company, and its successor in interest and assigns, or any successor
Servicer appointed as herein provided.
"Servicer Remittance Date": With respect to any Distribution Date, the
Business Day preceding such Distribution Date.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03.
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses (including attorneys' fees and expenses and fees of
real estate brokers) incurred by the Servicer, the Trustee or the Fiscal Agent,
as applicable, in connection with the servicing and administering of (a) a
Mortgage Loan in respect of which a default, delinquency or other unanticipated
event has occurred or as to which a default is reasonably foreseeable or (b) an
REO Property, including, but not limited to, the cost of (i) compliance with the
Servicer's obligations set forth in Section 3.03(c), (ii) the preservation,
restoration and protection of a Mortgaged Property, (iii) obtaining any
Insurance and Condemnation Proceeds or any Liquidation Proceeds of the nature
described in clauses (i) - (iv) of the definition of "Liquidation Proceeds,"
(iv) any enforcement or judicial proceedings with respect to a Mortgaged
Property, including foreclosures and (v) the operation, leasing, management,
maintenance and liquidation of any REO Property.
"Servicing Fee": With respect to each Mortgage Loan and REO Loan, the
fee payable to the Servicer pursuant to the first paragraph of Section 3.11(a),
reduced by the amounts required to be used to cover Prepayment Interest
Shortfalls.
"Servicing Fee Rate": With respect to any Distribution Date and each
Mortgage Loan, a rate equal to 0.0735% per annum (or, with respect to the
Mortgage Loans numbered ML-146, ML-147 and ML-148, 0.0685% per annum) computed
on the basis of the Stated Principal Balance of the related Mortgage Loan as of
the immediately preceding Distribution Date (in each
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case, after giving effect to the distribution of principal of such Mortgage Loan
on such prior Distribution Date) and on the basis of a year assumed to consist
of 360 days and twelve 30-day months.
"Servicing Officer": Any officer and/or employee of the 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 the Servicer and the Special Servicer to
the Trustee and the Depositor on the Closing Date, as such list may be amended
from time to time thereafter.
"Servicing Standard": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the following events:
(i) a payment default shall have occurred on such Mortgage Loan at
its original maturity date (or, with respect to a Monthly Payment which
is a Balloon Payment, as to which the Balloon Payment is over 30 days
past due), or, if the maturity date of such Mortgage Loan has been
extended, a payment default occurs on such Mortgage Loan at its
extended maturity date; or
(ii) any Monthly Payment (other than a Balloon Payment) is 60 days
or more delinquent; or
(iii) the date upon which the Servicer determines that a payment
default has occurred or is imminent and is not likely to be cured by
the related Mortgagor within 60 days; or
(iv) the date upon which 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 being entered
against the related Mortgagor; provided, however, that if such decree
or order is discharged or stayed within 60 days of being entered, such
Mortgage Loan shall not be a Specially Serviced Mortgage Loan (and no
Special Servicing Fees, Workout Fees or Liquidation Fees will be
payable with respect thereto); or
(v) 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
(vi) 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;
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(vii) the date upon which the Servicer or Special Servicer shall
have received actual notice of the foreclosure or proposed foreclosure
of any other lien on the Mortgaged Property;
(viii) a default of which the Servicer or Special Servicer has
actual notice (other than a failure by such Mortgagor to pay principal
or interest) and which in the opinion of the Servicer or Special
Servicer materially and adversely affects the interests of the
Certificateholders has occurred and remained unremedied for the
applicable grace period specified in such Mortgage Loan (or if no grace
period is specified, 60 days); or
(ix) the occurrence of a Residual Value Policy Termination Event
or a Lease Enhancement Policy Termination Event.
"Similar Law": As defined in Section 5.02 (c).
"Special Servicer": Banc One Mortgage Capital Markets, LLC, a Delaware
limited liability company, or any successor special servicer appointed as herein
provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer pursuant to
the first paragraph of Section 3.11(b).
"Special Servicing Fee Rate": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, 0.25% per annum computed on the basis of the
Stated Principal Balance of the related Mortgage Loan and on the basis of a
360-day year with twelve 30-day months.
"Specially Serviced Mortgage Loan": As defined in Section 3.01(a).
"Startup Day": The day designated as such in Section 10.01(b).
"Stated Principal Balance": With respect to any Mortgage Loan, as of
any date of determination, an amount equal to (x) the Cut-off Date Principal
Balance of such Mortgage Loan, plus (y) any Mortgage Deferred Interest added to
the principal balance of such Mortgage Loan on or before the end of the
immediately preceding Due Period minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on such
Mortgage Loan after the Cut-off Date, to the extent received from the
Mortgagor or advanced by the Servicer and distributed to
Certificateholders on or before such date of determination;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date, to the extent distributed to
Certificateholders on or before such date of determination;
(iii) the principal portion of all Insurance and Condemnation
Proceeds and Liquidation Proceeds received with respect to such
Mortgage Loan after the Cut-off Date, to the extent distributed to
Certificateholders on or before such date of determination; and
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(iv) any reduction in the outstanding principal balance of such
Mortgage Loan resulting from a Deficient Valuation that occurred prior
to the end of the Due Period for the most recent Distribution Date.
With respect to any REO Loan, as of any date of determination, an
amount equal to (x) the Stated Principal Balance of the predecessor Mortgage
Loan as of the date of the related REO Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect to
the predecessor Mortgage Loan on or after the date of the related REO
Acquisition, to the extent distributed to Certificateholders on or
before such date of determination; and
(ii) the principal portion of all Insurance and Condemnation
Proceeds, Liquidation Proceeds and REO Revenues received with respect
to such REO Loan, to the extent distributed to Certificateholders on or
before such date of determination.
A Mortgage Loan or an REO Loan shall be deemed to be part of the Trust
Fund and to have an outstanding Stated Principal Balance greater than zero until
the Distribution Date on which the payments or other proceeds, if any, received
in connection with a Liquidation Event in respect thereof are to be (or, if no
such payments or other proceeds are received in connection with such Liquidation
Event, would have been) distributed to Certificateholders, following which
Distribution Date, the Stated Principal Balance of such Mortgage Loan will be
zero.
"Subordinate Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H or Class I Certificate.
"Sub-Servicer": Any Person with which the Servicer or the Special
Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": An agreement or agreements entered into by
and between the Servicer and any Approved Sub-Servicer relating to servicing and
administration of certain Mortgage Loans as provided in Section 3.22, it being
understood that any activities of M. Robert Goldman Company pursuant to its
agreement with the Servicer does not constitute a "Sub-Servicing Agreement."
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC
due to its classification as a REMIC under the REMIC Provisions, together with
any and all other information, reports or returns that may be required to be
furnished to the Certificateholders or filed with the Internal Revenue Service
or any other governmental taxing authority under any applicable provisions of
federal, state or local tax laws.
"30/360 Mortgage Loans": The Mortgage Loans indicated as such on
Schedule 7.
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"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(d)(i)(B).
"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.
"Transferor Letter": As defined in Section 5.02(d)(i)(D).
"Trust": The trust created hereby and to be administered hereunder.
"Trust Fund": The segregated pool of assets subject hereto,
constituting the Trust, consisting of: (i) the Mortgage Loans as from time to
time are subject to this Agreement and all payments under and proceeds of such
Mortgage Loans received after the Cut-off Date (other than payments of principal
and interest due and payable on such Mortgage Loans on or before the Cut-off
Date), together with all documents included in the related Mortgage Files; (ii)
such funds or assets as from time to time are deposited in the Certificate
Account, the Distribution Accounts, any Servicing Accounts, and, if established,
the REO Account; (iii) any REO Property; (iv) the rights of the mortgagee under
all Insurance Policies with respect to the Mortgage Loans and (v) the rights of
the Depositor under Sections 2, 3.2, 3.3, 3.4, 3.5, 3.6 and 5 of the Mortgage
Loan Purchase and Sale Agreement.
"Trustee": LaSalle Bank National Association, a national banking
association, in its capacity as trustee and its successors in interest, or any
successor trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(e).
"Trustee Fee": With respect to each Mortgage Loan and for any
Distribution Date, the fee to be paid to the Trustee pursuant to Section 8.05 as
compensation for the Trustee's activities under this Agreement. The Trustee Fee
shall be paid by the Servicer on each Distribution Date.
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class LA-1, Class
LA-2, Class LB, Class LC, Class LD, Class LE, Class LF, Class LG, Class LH and
Class LI Uncertificated Interests.
"Underwritten Debt Service Coverage Ratio": With respect to any
Mortgage Loan, the ratio of (i) Underwritten Net Cash Flow with respect to the
related Mortgaged Property to (ii) the aggregate amount of the Monthly Payments
due for the 12-month period immediately following the Cut-off Date.
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"Underwritten Net Cash Flow": With respect to any Mortgage Loan other
than a CTL Loan, the estimated stabilized annual revenue derived from the use
and operation of such Mortgaged Property, less (i) estimated variable annual
expenses, including operating expenses (such as utilities, administrative
expenses, repairs and maintenance, management fees and advertising), (ii) fixed
expenses (such as insurance and real estate taxes) and (iii) capital
expenditures for annual estimated replacement reserves, tenant improvements and
leasing commissions, in each case excluding certain non-operating expenses as
depreciation, amortization, partnership distributions and financing fees.
"Underwriters": PaineWebber Incorporated and Merrill Lynch, Pierce,
Fenner & Smith Incorporated.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"Unscheduled Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of:
(a) all Principal Prepayments received on the Mortgage Loans during the
related Due Period; and
(b) the principal portions of all Liquidation Proceeds, Insurance and
Condemnation Proceeds and, if applicable, REO Revenues received with respect to
the Mortgage Loans and any REO Loans during the related Due Period, but in each
case only to the extent that such principal portion represents a recovery of
principal for which no advance was previously made pursuant to Section 4.03 in
respect of a preceding Distribution Date.
"Upper-Tier Distribution Account": The segregated account or accounts
(or sub-account) created and maintained by the Trustee pursuant to Section
3.04(c) in trust for the Certificateholders, which shall be entitled LaSalle
Bank National Association, as Trustee, in trust for the registered Holders of
PaineWebber Mortgage Acceptance Corporation V Commercial Mortgage Pass-Through
Certificates, Series 1999-C1, Upper-Tier Distribution Account." Any such account
or accounts (or subaccount) shall be an Eligible Account.
"Upper-Tier REMIC": One of the two separate REMICs comprising the Trust
Fund, the assets of which consist of the Uncertificated Lower-Tier Interests and
such amounts as shall from time to time be held in the Upper-Tier Distribution
Account.
"U.S. Person": A citizen or resident of the United States, a
corporation, partnership (except to the extent provided in applicable Treasury
Regulations) or other entity created or organized in, or under the laws of, the
United States or any political subdivision thereof, an estate whose income is
subject to United States federal income tax regardless of its source or a trust
if a court within the United States is able to exercise primary supervision over
the administration of such trust, and one or more such U.S. Persons have the
authority to control all substantial decisions of such trust, (or, to the extent
provided in applicable Treasury Regulations, certain trusts in existence on
August 20, 1996 which are eligible to be treated as U.S. Persons).
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"Voting Rights": The portion of the voting rights of all of the
Certificates, which is allocated to any Certificate, subject to the proviso to
the definition of "Certificateholder." At all times during the term of this
Agreement, the Voting Rights shall be allocated among the various Classes of
Certificateholders as follows: (i) 4% in the case of the Class X Certificates,
and (ii) in the case of any other Class of Regular Certificates a percentage
equal to the product of 96% and a fraction, the numerator of which is equal to
the aggregate Certificate Balance of such Class, in each case, determined as of
the Distribution Date immediately preceding such time, and the denominator of
which is equal to the aggregate Certificate Balance of the Regular Certificates,
each determined as of the Distribution Date immediately preceding such time.
Neither the Class R Certificates nor the Class LR Certificates will be entitled
to any Voting Rights. For purposes of determining Voting Rights, the Certificate
Balance of any Class shall be deemed to be reduced by the amount allocated to
such Class of any Appraisal Reductions. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates. Under certain circumstances described in the definition of
"Certificateholder", Certificates held by the Servicer, the Special Servicer,
the Depositor or any Affiliates thereof may not be counted in determining Voting
Rights.
"Weighted Average Net Mortgage Rate": With respect to any date of
determination, the weighted average of the Net Mortgage Rates of the Mortgage
Loans, weighted on the basis of their respective Stated Principal Balances as of
the preceding Distribution Date (after giving effect to the distribution of
principal on such Distribution Date), or, in the case of the first Distribution
Date, the respective Cut-off Date of such Mortgage Loans.
"Withheld Amounts": As defined in Section 3.25(b).
"Workout Fee": The fee paid to the Special Servicer with respect to
each Corrected Mortgage Loan.
"Workout Fee Rate": A fee of 1.00% of each collection of interest and
principal, including (i) Monthly Payments, (ii) Balloon Payments and (iii)
payments (other than those included in clause (i) or (ii) of this definition),
received on each Corrected Mortgage Loan for so long as it remains a Corrected
Mortgage Loan.
"Yield Maintenance Charge": With respect to any Mortgage Loan, the
yield maintenance charge set forth in the related Mortgage Loan documents.
"Yield Rate": With respect to any Mortgage Loan, the yield rate set
forth in the related Mortgage Loan documents prior to any conversion to monthly
equivalent yield and applied to determine the amount of any Yield Maintenance
Charge with respect to such Mortgage Loan.
SECTION 1.02. Certain Calculations.
Unless otherwise specified herein, for purposes of determining amounts
with respect to the Certificates and the rights and obligations of the parties
hereto, the following provisions shall apply:
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(a) All calculations of interest (other than as provided in the
Mortgage Loan documents) provided for herein shall be made on the basis of a
360-day year consisting of twelve 30-day months.
(b) All Servicing Fees, Special Servicing Fees, Trustee Fees and the
Excess Fixed Yield shall be calculated on the basis of a 360-day year consisting
of twelve 30-day months.
(c) Any Mortgage Loan payment is deemed to be received on the date such
payment is actually received by the Servicer, the Special Servicer or the
Trustee; provided, however, that for purposes of calculating distributions on
the Certificates, Principal Prepayments with respect to any Mortgage Loan are
deemed to be received on the date they are applied in accordance with the
Servicing Standard consistent with the terms of the related Mortgage Note and
Mortgage to reduce the outstanding principal balance of such Mortgage Loan on
which interest accrues.
(d) Any reference to the Certificate Balance of any Class of
Certificates on or as of a Distribution Date shall refer to the Certificate
Balance of such Class of Certificates on such Distribution Date after giving
effect to (a) any distributions made on such Distribution Date pursuant to
Section 4.01(a), (b) any Collateral Support Deficit allocated to such Class on
such Distribution Date pursuant to Section 4.04 and (c) the addition of any
Certificate Deferred Interest allocated to such Class and added to such
Certificate Balance pursuant to Section 4.06(b).
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery hereof,
does hereby assign, transfer and convey to the Trustee, without recourse, in
trust for the benefit of the Certificateholders all the right, title and
interest of the Depositor, including any security interest therein for the
benefit of the Depositor, in, to and under (i) the Mortgage Loans identified on
the Mortgage Loan Schedule (including each IDOT Loan and each IDOT Guaranty),
(ii) Sections 2, 3.2, 3.3, 3.4, 3.5, 3.6 and 5 of each Mortgage Loan Purchase
and Sale Agreement (including each IDOT Loan and each IDOT Guaranty), 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 (other than payments of principal and interest due and
payable on the Mortgage Loans on or 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. In connection with the assignment to the Trustee of Sections
2, 3.2, 3.3, 3.4, 3.5, 3.6 and 5 of the Mortgage Loan Purchase and Sale
Agreements, it is intended that the Trustee get the benefit of Section 5 thereof
in connection with any exercise of rights thereunder, and the Depositor shall
use its reasonable best efforts to make available to the Trustee the benefits of
Section 5 thereof in connection with such exercise of rights.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each
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Mortgage Loan Seller pursuant to the applicable Mortgage Loan Purchase and Sale
Agreement, as applicable, to deliver to and deposit with, or cause to be
delivered to and deposited with, the Trustee or a Custodian appointed thereby,
on or before the Closing Date, the Mortgage File for each Mortgage Loan so
assigned. If a Mortgage Loan Seller cannot deliver, or cause to be delivered, as
to any Mortgage Loan, any original Mortgage Note, such Mortgage Loan Seller
shall deliver a copy or duplicate original of such Mortgage Note, together with
an affidavit certifying that the original thereof has been lost or destroyed. If
a Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents or instruments referred to in clauses (ii),
(iv), (vi), (viii), (xi) and (xii) of the definition of "Mortgage File," with
evidence of filing or recording thereon, solely because of a delay caused by the
public recording or filing office where such document or instrument has been
delivered for recordation or filing, the delivery requirements of the applicable
Mortgage Loan Purchase and Sale Agreement and this 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 such Mortgage Loan Seller to be a true and
complete copy of the original thereof submitted for recording or filing) 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 (certified by the appropriate county
recorder's office, in the case of the documents and/or instruments referred to
in clause (ii) of the definition of "Mortgage File," to be a true and complete
copy of the original thereof submitted for recording or filing), with evidence
of recording or filing 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 such Mortgage Loan Seller is, as certified in
writing to the Trustee no less often than every 90 days, in good faith
attempting to obtain from the appropriate county recorder's office such original
or photocopy). If a 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 the definition of "Mortgage File," with evidence of recording
thereon, if applicable, for any other reason, including, without limitation,
that such non-delivered document or instrument has been lost, the delivery
requirements of the applicable Mortgage Loan Purchase and Sale Agreement and
this 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 and certified in the case of the documents and/or instruments
referred to in clause (ii) of the definition of "Mortgage File" by the
appropriate county recorder's office 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, together with an
affidavit certifying that the original thereof has been lost or destroyed.
Neither the Trustee nor any Custodian shall in any way be liable for any failure
by either Mortgage Loan Seller or the Depositor to comply with the delivery
requirements of the applicable Mortgage Loan Purchase and Sale Agreement and
this Section 2.01(b). With respect to any Mortgage Loan and notwithstanding the
foregoing or the definition of "Mortgage File," the Mortgage Loan Sellers may
deliver a UCC-3 on or before the Closing Date that does not contain the filing
information for the related UCC-1 and/or UCC-2 if such UCC-1 and/or UCC-2 has
not been returned to the Mortgage Loan Sellers by the applicable filing office,
and the Mortgage Loan Sellers may deliver an assignment referred to in clauses
(iii), (v) or (vii) of the definition of "Mortgage File" that does not contain
the recording information for the related
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Mortgage, Assignment of Leases or Security Agreement, as applicable, if such
Mortgage, Assignment of Leases or Security Agreement has not been returned to
the Mortgage Loan Sellers by the applicable recording office. The Mortgage Loan
Sellers shall deliver such recording or filing information to the Trustee
promptly upon receipt thereof for such Mortgage Loans and the Trustee shall
cause such filing or recording information to be inserted into the applicable
document.
(c) Except under the circumstances provided for in the last sentence of
this subsection (c), Mortgage Loan Seller, or the Trustee at the related
Mortgage Loan Seller's expense, shall, as to each Mortgage Loan sold by it to
the Depositor, promptly (and in any event within 30 days of the later of the
Closing Date and the Trustee's or Custodian's actual receipt of the related
documents) cause to be filed or recorded, as the case may be, in the appropriate
public office for real property records or UCC Financing Statements, as
appropriate, each assignment to the Trustee referred to in clauses (iii), (v)
and (vii) of the definition of "Mortgage File" and each UCC-3 to the Trustee
referred to in clause (xi) of the definition of "Mortgage File" as indicated in
such assignment documents. Each such assignment shall reflect that it should be
returned by the public recording office to the Trustee or the Custodian
following recording, and each such UCC-3 shall reflect that the file copy
thereof should be returned to the Trustee or the Custodian following filing. The
Trustee is hereby authorized and empowered to endorse or to complete any such
assignments that are delivered in blank to the Trustee in the manner specified
for such assignment in the definition of "Mortgage File." Subject to Section
2.01(b), 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
prepare or cause to be prepared a substitute therefor or cure such defect, as
the case may be, and shall cause the same to be duly recorded or filed, as
appropriate, all at the applicable Mortgage Loan Seller's expense.
Notwithstanding the foregoing, there shall be no requirement to record any
assignment to the Trustee referred to in clause (iii), (v) or (vii) of the
definition of "Mortgage File," or to file any UCC-3 to the Trustee referred to
in clause (xi) of the definition of "Mortgage File," in those jurisdictions
where, in the written opinion of local counsel (which opinion shall not be an
expense of the Trust Fund) acceptable to the Depositor and the Trustee, such
recordation and/or filing is not required to protect the Trustee's interest in
the related Mortgage Loans against sale, further assignment, satisfaction or
discharge by the Mortgage Loan Sellers, the Servicer, the Special Servicer, any
Sub-Servicer or the Depositor.
(d) All documents and records in the Depositor's or the Mortgage Loan
Sellers' possession relating to the Mortgage Loans (including financial
statements, operating statements and any other information provided by the
respective Mortgagor from time to time), or copies thereof, that are not
required to be a part of a Mortgage File in accordance with the definition
thereof shall be delivered to the Servicer on or before the Closing Date
(subject to Section 2.01(b) and shall be held by the Servicer on behalf of the
Trustee in trust for the benefit of the Certificateholders.
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Servicer, on or before
the Closing Date, a fully executed original counterpart of each Mortgage Loan
Purchase and Sale Agreement, as in full force and effect, without amendment or
modification, on the Closing Date.
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(f) The Depositor shall use its reasonable best efforts to require
that, promptly after the Closing Date, but in all events within three Business
Days after the Closing Date, the Mortgage Loan Sellers shall cause all funds on
deposit in escrow accounts maintained with respect to the Mortgage Loans in the
name of the Mortgage Loan Sellers or any other name to be transferred to the
Servicer (or a Sub-Servicer) for deposit into Servicing Accounts.
SECTION 2.02. Acceptance by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement,
acknowledges the Depositor's assignment to it of its right, title and interest
in the assets that constitute the Trust Fund and further acknowledges receipt by
it or a Custodian on its behalf (but subject to (i) the provisions of Section
2.01 and (ii) any exceptions noted on the Trustee Exception Report) of the
applicable documents specified in clause (i) of the definition of "Mortgage
File" with respect to each Mortgage Loan, of a fully executed original
counterpart of the Mortgage Loan Purchase and Sale Agreements 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 (subject to the further review
provided for in this Section 2.02) the other documents delivered or caused to be
delivered by the Mortgage Loan Sellers constituting the Mortgage Files, and that
it holds and will hold such other assets included in the Trust Fund, in trust
for the exclusive use and benefit of all present and future Certificateholders.
(b) Within 60 days of the Closing Date, the Trustee or a Custodian on
its behalf shall review each of the Mortgage Loan documents delivered or caused
to be delivered by the Mortgage Loan Sellers constituting the Mortgage Files;
and, promptly following such review (but in no event later than 90 days after
the Closing Date), the Trustee shall certify in writing to each of the Rating
Agencies, the Depositor, the Servicer, the Special Servicer, the Directing
Certificateholder (provided it shall have identified itself, and furnished to
the Trustee a notice address for the delivery of such certification) and the
Mortgage Loan Sellers that, as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan
specifically identified in any exception report annexed thereto as not being
covered by such certification), (i) all documents specified in the definition of
"Mortgage File," as applicable, are in its possession, (ii) all documents
delivered or caused to be delivered by the applicable Mortgage Loan Seller
constituting the Mortgage Files have been reviewed by it or by a Custodian on
its behalf and appear regular on their face and relate to such Mortgage Loan,
and (iii) based on such examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (i), (ii)(a), (iv), (v), (vii) and (x)(c) in the definition
of "Mortgage Loan Schedule" is correct.
(c) The Trustee or a Custodian on its behalf shall review each of the
Mortgage Loan documents received thereby subsequent to the Closing Date; and, on
or about the first anniversary of the Closing Date, the Trustee shall certify in
writing to each of the Rating Agencies, the Depositor, the Servicer, the Special
Servicer and the Mortgage Loan Sellers that, as to each Mortgage Loan listed on
the Mortgage Loan Schedule (other than any Mortgage Loan as to which a
Liquidation Event has occurred or any Mortgage Loan specifically identified in
any exception report annexed thereto as not being covered by such
certification), (i) all documents specified in the definition of "Mortgage
File," as applicable, are in its possession, (ii) all Mortgage Loan documents
received by it or any Custodian have been reviewed by it or by such Custodian on
its behalf and appear regular on their face and relate to such Mortgage Loan and
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(iii) based on the examinations referred to in subsection (b) above and this
subsection (c) and only as to the foregoing documents, the information set forth
in the Mortgage Loan Schedule with respect to the items specified in clauses
(i), (ii)(a), (iv), (v), (vii) and (x)(c) of the definition of "Mortgage Loan
Schedule" is correct.
(d) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (iv) - (viii), (x) and (xiv) of the definition of
"Mortgage File" exist or are required to be delivered by the Depositor, the
Mortgage Loan Sellers or any other Person or (ii) to inspect, review or examine
any of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are genuine,
enforceable, recordable or appropriate for the represented purpose or that they
are other than what they purport to be on their face.
(e) If, in the process of reviewing the Mortgage Files or at any time
thereafter, the Trustee or any Custodian finds any document or documents
constituting a part of the Mortgage File not to have been properly executed or,
subject to Section 2.01(b), not to have been delivered, to contain information
that does not conform in any material respect with the corresponding information
set forth in the Mortgage Loan Schedule or to be defective on its face (each, a
"Defect" in the related Mortgage File), the Trustee shall promptly so notify the
Depositor, the Servicer, the Special Servicer and the applicable Mortgage Loan
Seller (and in no event later than 90 days after the Closing Date and every 90
days thereafter until January 1, 2000, and annually thereafter), by providing a
written report ( the "Trustee Exception Report") setting forth with
particularity for each affected Mortgage Loan the nature of such Defect.
SECTION 2.03. Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase of Mortgage Loans for Defects in
Mortgage Files and Breaches of Representations and Warranties.
(a) The Depositor hereby represents and warrants to the other parties
hereto that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
and the Depositor has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement by it and is
in compliance with the laws of each state in which any Mortgaged
Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan, and has the power and authority
to execute, deliver and perform this Agreement and all the transactions
contemplated hereby, including, but not limited to, the power and
authority to sell, assign and transfer the Mortgage Loans in accordance
with this Agreement;
(ii) Assuming the due authorization, execution and delivery of
this Agreement by each other party hereto, this Agreement and all of
the obligations of the Depositor hereunder are the legal, valid and
binding obligations of the Depositor, enforceable against the Depositor
in accordance with the terms of this Agreement, except as such
enforceability 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);
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(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulation to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions
of the certificate of incorporation or the by-laws of the Depositor or
any indenture, agreement or instrument to which the Depositor is a
party or by which it is bound, or any order or decree applicable to the
Depositor, or result in the creation or imposition of any lien on any
of the Depositor's assets or property, which would materially and
adversely affect the ability of the Depositor to carry out the
transactions contemplated by this Agreement; the Depositor has obtained
any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Depositor of this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or
by or before any other governmental agency or instrumentality which
would materially and adversely affect the validity of the Mortgage
Loans or the ability of the Depositor to carry out the transactions
contemplated by this Agreement;
(v) 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 except
for any such approvals that have been received and copies of which have
been provided to the Trustee and the Underwriters;
(vi) The Depositor is the lawful owner of the Mortgage Loans with
the full right and authority to sell, assign and transfer the Mortgage
Loans to the Trust; and
(vii) The Depositor is transferring the Mortgage Loans to the
Trustee for the benefit of the Certificateholders free and clear of any
and all liens, pledges, charges and security interests.
The representations and warranties of the Depositor set forth in this
Section 2.03(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust remains in existence. Upon discovery by any 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 hereto.
(b) If any Certificateholder, the Servicer, the Special Servicer (in
the case of a Specially Serviced Mortgage Loan), the Trustee or the Depositor
discovers or receives notice of a Defect in any Mortgage File or a breach of any
representation or warranty set forth in, or required to be made with respect to
a Mortgage Loan by a Mortgage Loan Seller pursuant to, a Mortgage Loan Purchase
and Sale Agreement (a "Breach"), which Defect or
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Breach, as the case may be, materially and adversely affects the value of any
Mortgage Loan or the interests of the Certificateholders therein, such
Certificateholder, the Servicer, the Special Servicer, the Depositor or the
Trustee, as applicable, shall give prompt written notice of such Defect or
Breach, as the case may be, to the Trustee, the Depositor, the Servicer, the
Special Servicer, each Rating Agency, and each Mortgage Loan Seller and shall
request that the Mortgage Loan Seller responsible for such Defect or Breach, not
later than the earlier of 90 days from such Mortgage Loan Seller's receipt of
such notice or such Mortgage Loan Seller's discovery of such Breach, (i) cure
such Defect or Breach, as the case may be, in all material respects; provided,
however, that such Mortgage Loan Seller shall have an additional 90-day period
to cure such Defect or Breach if it is diligently proceeding with such cure, and
has delivered to the Trustee, the Servicer and each Rating Agency an officer's
certificate, together with copies of all related correspondence and
communication in the possession of the Mortgage Loan Seller as of the date
thereof relating to such Defect or Breach, that describes the status of such
diligence reasons that a cure was not effected within the first 90-day cure
period and the actions it proposes to take to effect such cure and which states
that it anticipates such cure will be effected within the additional 90-day
period or (ii) repurchase the affected Mortgage Loan at the applicable Purchase
Price or in conformity with the applicable Mortgage Loan Purchase and Sale
Agreement. Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed to materially and adversely affect the interest of
Certificateholders therein. If the affected Mortgage Loan is to be repurchased,
the Trustee shall designate the Distribution Account as the account into which
funds in the amount of the Purchase Price are to be deposited by wire transfer.
(c) In connection with any repurchase of a Mortgage Loan contemplated
by this Section 2.03, the Trustee, the Servicer and the Special Servicer shall
each tender to the applicable Mortgage Loan Seller, upon delivery to each of the
Trustee, the Servicer and the Special Servicer of a trust receipt executed by
such Mortgage Loan Seller, all portions of the Mortgage File and other documents
pertaining to such Mortgage Loan possessed by it, and each document that
constitutes a part of such Mortgage File that was endorsed or assigned to the
Trustee shall be endorsed or assigned, as the case may be, to the applicable
Mortgage Loan Seller in the same manner as provided in Section 3.3 of the
Mortgage Loan Purchase and Sale Agreement.
(d) Section 3.3 of the applicable Mortgage Loan Purchase and Sale
Agreement provides the sole remedy available to the Certificateholders, or the
Trustee on behalf of the Certificateholders, respecting any Defect in the
Mortgage File for a Mortgage Loan sold pursuant to that Mortgage Loan Purchase
and Sale Agreement or any Breach of any representation or warranty set forth in
or required to be made pursuant to Section 3.2 of such Mortgage Loan Purchase
and Sale Agreement.
(e) The Depositor and the Trustee hereby designate the Servicer and the
Special Servicer (in the case of Specially Serviced Mortgage Loans), for the
benefit of the Certificateholders, to enforce the obligations of the Mortgage
Loan Seller under Section 3.3 of the related Mortgage Loan Purchase and Sale
Agreements. Such enforcement, including, without limitation, the legal
prosecution of claims, shall be carried out in such form, to such extent and at
such time as the Servicer or the Special Servicer, as the case may be, would
require were it, in its individual capacity, the owner of the affected Mortgage
Loan(s). The Servicer and the Special Servicer, as the case may be, shall be
reimbursed for the reasonable costs of such enforcement: first, from a specific
recovery of costs, expenses or attorneys' fees against the applicable Mortgage
Loan Seller ordered or awarded pursuant to an adjudication; second, pursuant to
Section 3.05(a)(vii), out of the related Purchase Price, to the extent that such
expenses are a specific component thereof; and third, if at the conclusion of
such enforcement
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action it is determined that the amounts described in clauses first and second
are insufficient, then pursuant to Section 3.05(a)(viii), out of general
collections on the Mortgage Loans on deposit in the Certificate Account.
SECTION 2.04. Execution of Certificates.
The Trustee hereby acknowledges the assignment to it of the Mortgage
Loans and, subject to Sections 2.01 and 2.02, the delivery to it or a Custodian
on its behalf of the Mortgage Files and fully executed original counterpart of
the Mortgage Loan Purchase and Sale Agreements, together with the assignment to
it of all other assets included in the Trust Fund. Concurrently with such
assignment and delivery and in exchange therefor, the Trustee acknowledges the
issuance of the Uncertificated Lower-Tier Interests to the Depositor and the
authentication and delivery of the Class LR Certificates to or upon the order of
the Depositor, in exchange for the Mortgage Loans, receipt of which is hereby
acknowledged, and immediately thereafter, the Trustee acknowledges that it has
executed and caused the Authenticating Agent to authenticate and to deliver to
or upon the order of the Depositor, in exchange for the Uncertificated
Lower-Tier Interests, the Regular Certificates and the Class R Certificates, and
the Depositor hereby acknowledges the receipt by it or its designees, of such
Certificates in authorized Denominations evidencing the entire beneficial
ownership of the Upper-Tier REMIC.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Servicer to Act as Servicer; Special Servicer to Act as
Special Servicer; Administration of the Mortgage Loans.
(a) Each of the Servicer and the Special Servicer shall diligently
service and administer the Mortgage Loans which it is obligated to service
pursuant to this Agreement on behalf of the Trustee for the benefit of the
Certificateholders (in each case as determined by the Servicer or the Special
Servicer, as the case may be, in its good faith and reasonable business
judgment) in accordance with applicable law, the terms of this Agreement and the
terms of the respective Mortgage Loans and, to the extent consistent with the
foregoing, with the same care, skill, prudence and diligence with which the
Servicer or Special Servicer, as the case may be: (1) services and administers
similar mortgage loans for other third-party portfolios, giving due
consideration to the customary and usual standards of practice of prudent
institutional multifamily and commercial mortgage lenders servicing their own
mortgage loans, or (2) services and administers commercial, multifamily,
industrial, hotel, nursing home, congregate care, medical office, credit-tenant
lease or manufactured housing community mortgage loans owned by the Servicer or
Special Servicer, as the case may be, whichever standard is higher, and with a
view to the maximization of timely recovery of principal and interest on a
present value basis on the Mortgage Loans or Specially Serviced Mortgage Loans,
as applicable, and the best interests of the Trust and the Certificateholders,
as determined by the Servicer or Special Servicer, as the case may be, in its
reasonable judgment, notwithstanding:
(i) any relationship that the Servicer or the Special Servicer, as
the case may be, or any Affiliate thereof may have with the related
Mortgagor or any other party to this Agreement;
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(ii) the ownership of any Certificate by the Servicer or the
Special Servicer, as the case may be, or any Affiliate thereof;
(iii) the Servicer's obligation to make Advances;
(iv) the Servicer's or Special Servicer's, as the case may be,
right to receive compensation for its services hereunder or with
respect to any particular transaction; and
(v) owning or managing any other mortgage loans or mortgaged
properties for third parties (the foregoing, collectively referred to
as the "Servicing Standard").
Without limiting the foregoing, subject to Section 3.21, the Special
Servicer shall be obligated to service and administer (i) any Mortgage Loans as
to which a Servicing Transfer Event has occurred and is continuing (the
"Specially Serviced Mortgage Loans") and (ii) any REO Properties; provided,
however, that the Servicer shall continue to make all calculations, and prepare,
or cause to be prepared, all reports to the Certificateholders required
hereunder with respect to the Specially Serviced Mortgage Loans 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 Servicer shall not be liable for failure to comply with such
duties insofar as such failure results from a failure of the Special Servicer to
provide sufficient information to the Servicer to comply with such duties. Each
Mortgage Loan that becomes a Specially Serviced Mortgage Loan shall continue as
such until satisfaction of the conditions specified in Section 3.21(a). Without
limiting the foregoing, subject to Section 3.21, the Servicer shall be obligated
to service and administer all Mortgage Loans which are not Specially Serviced
Mortgage Loans; provided, however, that the Special Servicer shall make the
inspections, use its reasonable best efforts consistent with the Servicing
Standard to collect the statements and shall prepare the reports in respect of
the related Mortgaged Properties with respect to Specially Serviced Mortgage
Loans in accordance with Sections 3.12 and 3.21(c).
(b) Subject only to the Servicing Standard and the terms of this
Agreement and of the respective Mortgage Loans the 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, with respect to each Mortgage Loan it is obligated
to service under this Agreement, each of the Servicer and the Special Servicer,
in its own name on behalf of and as attorney-in-fact of the Trustee on behalf of
the Certificateholders, is hereby authorized and empowered by the Trustee and
obligated to execute and deliver, on behalf of the Certificateholders and the
Trustee or any of them, any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by the related Mortgage or other security document in the related
Mortgage File on the related Mortgaged Property and related collateral; subject
to Section 3.20, any and all modifications, waivers, amendments or consents to
or with respect to any documents contained in the related Mortgage File; and 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 execute any powers of attorney and other documents
delivered to it by the Servicer or
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Special Servicer and necessary or appropriate to enable the Servicer or the
Special Servicer, as the case may be, to carry out its servicing and
administrative duties hereunder; provided, however, that the Trustee shall not
be held liable for and shall be indemnified on a current basis by the Servicer
or the Special Servicer as applicable for any negligence with respect to, or
misuse of, any such power of attorney by the Servicer or the Special Servicer.
(c) The relationship of the Servicer to the Trustee under this
Agreement is intended by the parties to be that of an independent contractor and
not that of a joint venturer, partner or agent.
SECTION 3.02. Collection of Payments.
(a) Each of the Servicer and the Special Servicer shall make reasonable
best efforts consistent with the Servicing Standard to collect all payments
called for under the terms and provisions of the Mortgage Loans it is obligated
to service hereunder, and shall follow such collection procedures as are
consistent with this Agreement (including, without limitation, 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 Servicer and
Special Servicer (including the Special Servicer and 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 Excess Interest or
principal in excess of the principal component of the constant Monthly Payment,
other than requests for collection, until the Maturity Date of the related
Mortgage Loan; provided, further that the 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 Loan Documents.
Consistent with the foregoing, the Servicer or the Special Servicer each may in
its discretion waive any Penalty Charge in connection with any delinquent
payment on a Mortgage Loan it is obligated to service hereunder.
(b) All amounts collected on any Mortgage Loan in the form of payments
from Mortgagors, Insurance and Condemnation Proceeds or Liquidation Proceeds
shall be applied to amounts due and owing under the related Mortgage Note or
Mortgage Notes and Mortgage (including, without limitation, for principal and
accrued and unpaid interest) in accordance with the express provisions of each
related Mortgage Note and the related Mortgage and, in the absence of such
express provisions, shall be applied (after reimbursement to the Servicer, the
Trustee and/or the Fiscal Agent for any related Advances and interest thereon at
the Reimbursement Rate as provided herein):
first, as a recovery of accrued and unpaid interest on such Mortgage Loan at
the related Mortgage Rate to but not including the Due Date in the Due
Period of receipt;
second, as a recovery of principal of such Mortgage Loan to the extent of
its entire unpaid principal balance; and
third, in accordance with the Servicing Standard, as a recovery of any other
amounts due and owing on such Mortgage Loan, including, without limitation,
Yield Maintenance Charges, Prepayment Premiums, Penalty Charges and Excess
Interest. Amounts collected on any REO Loan shall be deemed to be applied in
accordance with the definition thereof.
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(c) To the extent consistent with the terms of the Mortgage Loans and
applicable law, the Servicer shall apply all Insurance and Condemnation Proceeds
it receives on a day other than the first day of a month to amounts due and
owing under the related Mortgage Loan as if such Insurance and Condemnation
Proceeds were received on the first day of the calendar month immediately
succeeding the month in which such Insurance and Condemnation Proceeds were
received.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts.
(a) The Servicer shall establish and maintain one or more accounts (the
"Servicing Accounts"), into which all Escrow Payments shall be deposited and
retained, and shall administer such Servicing Accounts in accordance with the
Mortgage Loan documents. Servicing Accounts shall be Eligible Accounts.
Withdrawals of amounts so deposited from a Servicing Account may be made only
to: (i) effect payment of real estate taxes, assessments, insurance premiums,
ground rents (if applicable), repair, remediation, capital improvements, and
comparable items for which funds have been escrowed in the Servicing Accounts;
(ii) reimburse the Servicer, the Trustee or the Fiscal Agent for any Servicing
Advances; (iii) refund to Mortgagors any sums as may be determined to be
overages; (iv) pay interest to Mortgagors on balances in the Servicing Account,
if required by applicable law or the terms of the related Mortgage Loan and as
described below or, if not so required, to the Servicer; (v) withdraw amounts
deposited in error or (vi) clear and terminate the Servicing Account at the
termination of this Agreement in accordance with Section 9.01. As part of its
servicing duties, the Servicer shall pay or cause to be paid to the Mortgagors
interest on funds in Servicing Accounts, to the extent required by law or the
terms of the related Mortgage Loan.
(b) The Special Servicer, in the case of REO Loans, and the Servicer,
in the case of all other Mortgage Loans, shall maintain accurate records with
respect to each 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. The Special Servicer, in the case of REO Loans, and the Servicer, in
the case of all other Mortgage Loans, shall obtain, from time to time, all bills
for the payment of such items (including renewal premiums) and shall effect
payment thereof by withdrawal from the related escrow account or REO Account, as
applicable, and if no such escrow account or REO Account is available, then by
the Servicer as Servicing Advances if such amounts would not constitute
Nonrecoverable Advances and otherwise from the REO Account prior to the
applicable penalty or termination date, employing for such purpose Escrow
Payments (which shall be so applied by the Servicer at the written direction of
the Special Servicer in the case of Specially Serviced Mortgage Loans) as
allowed under the terms of the related Mortgage Loan. The Servicer shall service
and administer any reserve accounts (including monitoring, maintaining or
changing the amounts of required escrows) in accordance with the terms of such
Mortgage Loan and the Servicing Standard; provided, however, that in the case of
a Specially Serviced Mortgage Loan, the Servicer shall obtain the written
direction from the Special Servicer prior to changing the amount of escrow
required or making any payments out of the related reserve account. To the
extent that a Mortgage Loan does not require a Mortgagor to escrow for the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items, the Special Servicer, in the case of Specially
Serviced Mortgage Loans, and the Servicer, in the case of all other Mortgage
Loans, shall use reasonable best efforts consistent
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with the Servicing Standard to require that payments in respect of such items be
made by the Mortgagor when and as required by the related Mortgage Loan
Documents.
(c) In accordance with the Servicing Standard and for all Mortgage
Loans, the Servicer shall advance with respect to each related Mortgaged
Property (including any REO Property) all such funds as are necessary for the
purpose of effecting the payment of (i) real estate taxes, assessments and other
similar items that are or may become a lien thereon, (ii) ground rents (if
applicable) and (iii) premiums on Insurance Policies, in each instance if and to
the extent related Escrow Payments 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; provided, however, that the particular
Servicing Advance would not, if made, constitute a Nonrecoverable Servicing
Advance; provided, further, that with respect to the payment of taxes and
assessments, the Servicer shall not be required to make such Servicing Advance
until the earlier of five Business Days after the Servicer has received
confirmation that such item has not been paid or the date prior to the date
after which any penalty or interest would accrue in respect of such taxes or
assessments. The Special Servicer shall give the Servicer, the Trustee and the
Fiscal Agent not less than five Business Days' written (facsimile) notice before
the date on which the Servicer is requested to make any Servicing Advance with
respect to a given Specially Serviced Mortgage Loan or REO Property; provided,
however, that only two Business Days' written (facsimile) 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, at the time of such
notice, the Special Servicer shall provide the Servicer, the Trustee and the
Fiscal Agent with such information in its possession as the Servicer, the
Trustee or the Fiscal Agent, as applicable, may reasonably request to enable the
Servicer, the Trustee or the Fiscal Agent, as applicable, to determine whether a
requested Servicing Advance would constitute a Nonrecoverable Advance. All such
advances shall be reimbursable as provided in Section 3.05. Notwithstanding that
such costs may ultimately be recovered from the related Mortgagor or otherwise,
no costs incurred by the Servicer or the Special Servicer in effecting the
payment of real estate taxes, assessments and, if applicable, ground rents on or
in respect of the Mortgaged Properties shall, for purposes hereof, including,
without limitation, calculating monthly distributions to Certificateholders, be
added to the unpaid principal balances of the related Mortgage Loans. The
failure by the Servicer to make any required Servicing Advance as and when due
(unless such a Servicing Advance would constitute a Nonrecoverable Servicing
Advance) shall constitute an Event of Default under Section 7.01(a)(i) and, to
the extent the Trustee has actual knowledge that such Servicing Advance is
necessary, the Trustee shall make such Servicing Advance pursuant to Section
7.05. If the Trustee fails to make such Servicing Advance, to the extent the
Fiscal Agent has knowledge that such Servicing Advance is necessary, the Fiscal
Agent shall make such Servicing Advance pursuant to Section 7.05. The making of
such Advance by the Fiscal Agent shall cure the Trustee's failure to make such
Advance.
(d) In connection with its recovery of any Advance out of the
Certificate Account pursuant to Section 3.05(a), each of the Servicer, the
Trustee and the Fiscal Agent, as the case may be, shall be entitled to receive,
first out of Default Interest and other Penalty Charges for the related Mortgage
Loan and then, out of any amounts then on deposit in the Certificate Account,
interest at the Reimbursement Rate in effect from time to time, accrued on the
amount of such Servicing Advance from the date made to, but not including, the
date of reimbursement. The Servicer shall reimburse the Fiscal Agent, the
Trustee and then itself for any outstanding
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Servicing Advance and any accrued interest thereon as soon as practically
possible after funds available for such purpose are deposited in the Certificate
Account.
(e) To the extent an operations and maintenance plan is required to be
established and executed pursuant to the terms of a Mortgage Loan, the Servicer
shall request from the Mortgagor written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any repairs,
capital improvements, actions or remediations are required to have been taken or
completed pursuant to the terms of the Mortgage Loan, the Servicer shall request
from the Mortgagor written confirmation of such actions and remediations within
a reasonable time after the later of the Closing Date and the date as of which
such actions or remediations are required to be or to have been taken or
completed. To the extent a Mortgagor shall fail to promptly respond to any
inquiry described in this Section 3.03(e), the Servicer shall use reasonable
best efforts consistent with the Servicing Standard to determine whether the
related Mortgagor has failed to perform its obligations under the related
Mortgage Loan and report any such failure to the Special Servicer within a
reasonable time after the later of January 1, 2000 and the date as of which such
actions or remediations are required to be or to have been taken or completed.
SECTION 3.04. The Certificate Account, the Excess Interest Distribution
Account and the Lower-Tier and Upper-Tier Distribution Accounts.
(a) The Servicer, on behalf of the Trustee, in trust for the benefit of
the Certificateholders, shall establish and maintain, or cause to be established
and maintained, a Certificate Account into which the Servicer shall deposit or
cause to be deposited on a daily basis (and in no event later than the Business
Day following receipt of available funds), except as otherwise specifically
provided herein, the following payments and collections received or made by or
on behalf of it subsequent to the Cut-off Date (other than in respect of
principal and interest on the Mortgage Loans due and payable on or before the
Cut-off Date), 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, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans
(net of the Servicing Fees and the Excess Fixed Yield), including
Penalty Charges, Prepayment Premiums and Yield Maintenance Charges;
(iii) all Insurance and Condemnation Proceeds and Liquidation
Proceeds received in respect of any Mortgage Loan or REO Property
(other than Liquidation Proceeds that are received in connection with
the purchase by the Servicer, the Special Servicer, the Controlling
Class Certificateholders, or the Holders of the Class LR Certificates
of all the Mortgage Loans and any REO Properties in the Trust Fund and
that are to be deposited in the Lower-Tier Distribution Account
pursuant to Section 9.01);
(iv) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c);
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(v) any amounts required to be deposited by the 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 Servicer or the
Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard or master single
interest policy; and
(vii) any amounts required to be transferred from the Policy
Escrow Account pursuant to Section 3.06.
The foregoing requirements for deposit in the Certificate Account shall
be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, actual payments from Mortgagors in the nature of
Escrow Payments, charges for beneficiary statements or demands, assumption fees,
processing fees, application fees, modification fees, extension fees or amounts
collected for mortgagor checks returned for insufficient funds need not be
deposited by the Servicer in the Certificate Account. Assumption, extension and
modification fees actually received from Mortgagors on Specially Serviced
Mortgage Loans shall be promptly delivered to the Special Servicer as additional
servicing compensation, but only to the extent the payment of such fees are in
accordance with the second paragraph of Section 3.11(b) and any other terms
hereof.
If the Servicer shall deposit in the Certificate Account any amount not
required to be deposited therein, it may at any time withdraw such amount
therefrom, any provision herein to the contrary notwithstanding.
Funds in the Certificate Account may only be invested in Permitted
Investments in accordance with the provisions of Section 3.06. The Servicer
shall give notice to the Trustee, the Special Servicer and the Depositor of the
location of the Certificate Account as of the Closing Date and of the new
location of the Certificate Account and prior to any change thereof.
(b) Upon receipt of any of the amounts enumerated in Section 3.04(a)
with respect to any Specially Serviced Mortgage Loan, the Special Servicer shall
remit within one Business Day such amounts to the Servicer for deposit into the
Certificate Account in accordance with the Section 3.04(a). Any such amounts
received by the Special Servicer with respect to an REO Property shall be
deposited by the Special Servicer into the REO Account and remitted to the
Servicer for deposit into the Certificate Account pursuant to Section 3.16(c).
Any items remitted to the Servicer pursuant to this paragraph shall be
accompanied by a copy of the invoice or other posting instructions, if any,
received from the related Mortgagor. With respect to any such amounts paid by
check to the order of the Special Servicer, the Special Servicer shall endorse
without recourse or warranty such check to the order of the Servicer and shall
promptly deliver any such check to the Servicer by Federal Express or such other
overnight courier as shall be approved by the Servicer. Upon proper endorsement
and addressing of package containing such items and delivery to Federal Express
or such other nationally recognized overnight courier service, Special Servicer
shall be deemed to have acted in good faith pursuant to Section 6.03(a).
(c) The Trustee shall establish and maintain the Lower-Tier
Distribution Account and the Upper-Tier Distribution Account in trust for the
benefit of the Certificateholders. Notwithstanding anything herein to the
contrary, the Lower-Tier Distribution Account and the
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Upper-Tier Distribution Account may be established as sub-accounts of a single
trust account, which shall be an Eligible Account. To the extent the Trustee is
required to make distributions from the Lower-Tier Distribution Account to the
Upper-Tier Distribution Account in respect of the Uncertificated Lower-Tier
Interests or otherwise, such distributions may be effected through accounting
entries on the books of the Trustee.
The Servicer shall, by 2:00 p.m. Central time on each Servicer
Remittance Date, deliver to the Trustee for deposit in the Lower-Tier
Distribution Account the following amounts (without duplication):
(i) all amounts constituting the Available Distribution Amount for
the immediately following Distribution Date;
(ii) [Reserved]
(iii) any P&I Advances required to be made by the Servicer in
accordance with Section 4.03;
(iv) any Liquidation Proceeds paid by the Controlling Class
Certificateholders, the Servicer, the Special Servicer, or the Holders
of the Class LR Certificates in connection with the purchase of all of
the Mortgage Loans and any REO Properties in the Trust Fund pursuant to
Section 3.18(b) or Section 9.01 (exclusive of that portion thereof
required to be deposited in the Certificate Account pursuant to Section
9.01);
(v) any Yield Maintenance Charges and Prepayment Premiums; and
(vi) any other amounts required to be so delivered for deposit in
the Lower-Tier Distribution Account pursuant to any provision of this
Agreement.
The Trustee shall, upon receipt, deposit in the Lower-Tier Distribution
Account any and all amounts received by the Trustee that are required by the
terms of this Agreement to be deposited therein. The Trustee shall deposit in
the Lower-Tier Distribution Account any P&I Advances required to be made by it
or the Fiscal Agent in accordance with Section 7.05.
On each Distribution Date to the extent of funds remitted to it by the
Servicer on the immediately preceding Servicer Remittance Date or otherwise
required to be remitted by the Trustee or Fiscal Agent pursuant to this
Agreement, the Trustee shall deposit in the Upper-Tier Distribution Account an
aggregate amount of immediately available funds equal to the Lower-Tier
Distribution Amount and the amount of any Yield Maintenance Charges and
Prepayment Premiums for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Sections 4.01(b) and
4.01(d), respectively.
The Trustee shall give notice to the Servicer and the Depositor of the
location of the Upper-Tier Distribution Account and the Lower-Tier Distribution
Account and of the new location of the Distribution Accounts prior to any change
thereof.
(d) Prior to the first Servicer Remittance Date following a Due Period
in which Excess Interest is received on any Mortgage Loan that has an
Anticipated Repayment Date, the Trustee shall establish and maintain the Excess
Interest Distribution Account in the name of the
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Trustee in trust for the benefit of the Certificateholders entitled to
distributions of Excess Interest pursuant to Section 4.01(g) of the Agreement.
The Excess Interest Distribution Account shall be established and maintained as
an Eligible Account. On or before each Servicer Remittance Date, the Servicer
shall remit to the Trustee for deposit in the Excess Interest Distribution
Account an amount equal to the Excess Interest received during the related Due
Period. On each Distribution Date, the Trustee shall withdraw the Excess
Interest from the Excess Interest Distribution Account for distribution pursuant
to Section 4.01(g). Following the distribution of Excess Interest on the first
Distribution Date after which no ARD Loans remain outstanding that pursuant to
their terms could pay Excess Interest, the Trustee shall terminate the Excess
Interest Distribution Account.
SECTION 3.05. Permitted Withdrawals From the Certificate Account and
the Distribution Accounts.
(a) The Servicer may, from time to time, make withdrawals from the
Certificate Account for any of the following purposes:
(i) to deposit in the Lower-Tier Distribution Account the amounts
that may be applied to make P&I Advances pursuant to Section 4.03(a);
(ii) to pay to itself unpaid Servicing Fees, to pay to the Special
Servicer any unpaid Special Servicing Fees, and to pay to the owner of
the Excess Fixed Yield any unpaid Excess Fixed Yield, in each case to
the extent earned or accrued;
(iii) to pay the Special Servicer Liquidation Fees and Workout
Fees in respect of each Mortgage Loan, Specially Serviced Mortgage Loan
and REO Loan, as applicable, the Servicer's or Special Servicer's, as
applicable, rights to payment pursuant to this clause (iii) with
respect to any Mortgage Loan, Specially Serviced Mortgage Loan or REO
Loan being limited to amounts received on or in respect of such
Mortgage Loan, Specially Serviced Mortgage Loan, or REO Loan;
(iv) to reimburse itself, the Trustee or the Fiscal Agent, as
applicable (in reverse of such order with respect to any Mortgage
Loan), for unreimbursed P&I Advances, the Servicer's, the Trustee's or
the Fiscal Agent's right to reimbursement pursuant to this clause (iv)
being limited to amounts received which represent Late Collections of
interest (net of the related Servicing Fees and Excess Fixed Yield)on
and principal of the particular Mortgage Loans or REO Loans with
respect to which such P&I Advances were made;
(v) to reimburse itself, the Trustee or the Fiscal Agent, as
applicable (in reverse of such order with respect to any Mortgage
Loan), for unreimbursed Servicing Advances and accrued interest thereon
at the Reimbursement Rate, the Servicer's, the Trustee's or the Fiscal
Agent's respective rights to reimbursement pursuant to this clause (v)
with respect to any Mortgage Loan or REO Property being limited to, as
applicable, related payments, Liquidation Proceeds, Insurance and
Condemnation Proceeds and REO Revenues;
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(vi) to reimburse itself, the Trustee or the Fiscal Agent, as
applicable (in reverse of such order with respect to any Mortgage Loan)
for Nonrecoverable Advances, in each case out of general collections on
the Mortgage Loans and REO Properties;
(vii) at such time as it reimburses itself, the Trustee or the
Fiscal Agent, as applicable (in reverse of such order with respect to
any Mortgage Loan), for (a) any unreimbursed P&I Advance pursuant to
clause (iv) above, to pay itself, the Trustee or the Fiscal Agent, as
applicable, any interest accrued and payable thereon in accordance with
Section 4.03(d) and 3.11(d), (b) any unreimbursed Servicing Advances
pursuant to clause (v) above, to pay itself, the Trustee or the Fiscal
Agent, as the case may be, any interest accrued and payable thereon in
accordance with Section 3.03(d) or (c) any Nonrecoverable Advances
pursuant to clause (vi) above, to pay itself, the Trustee or the Fiscal
Agent, as the case may be, any interest accrued and payable thereon;
provided that, in each such case, such reimbursements will first be
made from Default Interest and other Penalty Charges collected during
the related Due Period and thereafter (if such amounts are insufficient
therefor) from other amounts on deposit on the Certificate Account;
(viii) to reimburse itself, the Special Servicer, the Depositor or
the Trustee, as the case may be, for any unreimbursed expenses
reasonably incurred by such Person in respect of any Breach or Defect
giving rise to a repurchase obligation of a Mortgage Loan Seller under
Section 3.3 of the applicable Mortgage Loan Purchase and Sale
Agreement, including, without limitation, any expenses arising out of
the enforcement of the repurchase obligation, each such Person's right
to reimbursement pursuant to this clause (viii) with respect to any
Mortgage Loan being limited to that portion of the Purchase Price paid
for such Mortgage Loan that represents such expense in accordance with
clause (iv) of the definition of Purchase Price;
(ix) in accordance with Section 2.03(d), to reimburse itself or
the Trustee, as the case may be, out of general collections on the
Mortgage Loans and REO Properties for any unreimbursed expense
reasonably incurred by such Person in connection with the enforcement
of a Mortgage Loan Seller's obligations under Section 3.3 of the
applicable Mortgage Loan Purchase and Sale Agreement, but only to the
extent that such expenses are not reimbursable pursuant to clause
(viii) above or otherwise;
(x) to pay for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) out of general collections on the Mortgage
Loans and REO Properties;
(xi) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), to the extent collected from the
related Mortgagor and to the extent that all amounts then due and
payable with respect to the related Mortgage Loan have been paid and
are not needed to pay interest on Advances in accordance with Section
3.11(c), (a) interest and investment income earned in respect of
amounts relating to the Trust Fund held in the Certificate Account as
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provided in Section 3.06(b) (but only to the extent of the Net
Investment Earnings with respect to the Certificate Account for any
period from any Distribution Date to the immediately succeeding
Servicer Remittance Date) (b) late charges and (c) Penalty Charges
(other than late charges) on Mortgage Loans (other than Specially
Serviced Mortgage Loans); and to pay the Special Servicer, as
additional servicing compensation in accordance with the fourth
paragraph of Section 3.11(c), late charges on Specially Serviced
Mortgage Loans and Penalty Charges (other than late charges) on
Specially Serviced Mortgage Loans (but only to the extent collected
from the related Mortgagor and to the extent that all amounts then due
and payable with respect to the related Specially Serviced Mortgage
Loan have been paid and are not needed to pay interest on Advances in
accordance with Section 3.11(c));
(xii) to recoup any amounts deposited in the Certificate Account
in error;
(xiii) to pay itself, the Special Servicer, the Depositor or any
of their respective directors, managers, members, officers, employees
and agents, as the case may be, any amounts payable to any such Person
pursuant to Sections 6.03(a) or 6.03(b) or to the Trustee pursuant to
Section 8.05;
(xiv) to pay for (a) the cost of the Opinions of Counsel and any
costs not paid by the related Mortgagor contemplated by Sections
3.20(a) and 10.01(f) to the extent payable out of the Trust Fund, (b)
the cost of any Opinion of Counsel contemplated by Sections 11.01(a) or
11.01(c) in connection with an amendment to this Agreement requested by
the Trustee or the Servicer, which amendment is in furtherance of the
rights and interests of Certificateholders and (c) the cost of
obtaining the REO Extension contemplated by Section 3.16(a);
(xv) to pay out of general collections on the Mortgage Loans and
REO Properties any and all federal, state and local taxes imposed on
the Upper-Tier REMIC, the Lower-Tier REMIC or either of their assets or
transactions, together with all incidental costs and expenses, to the
extent that none of the Servicer, the Special Servicer, the Trustee or
the Fiscal Agent is liable therefor pursuant to Section 10.01(g);
(xvi) to reimburse the Servicer out of general collections on the
Mortgage Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund pursuant to Section 10.01(c);
(xvii) to pay itself, the Special Servicer, or a Mortgage Loan
Seller, 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 relating to
periods after the date of purchase;
(xviii) to remit to the Trustee for deposit in the Interest
Reserve Account the amounts required to be deposited in the Interest
Reserve Account pursuant to Section 3.25;
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(xix) deposit in the Lower-Tier Distribution Account the amount
required to be deposited therein pursuant to Section 4.01(a); and
(xx) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
The Servicer shall keep and maintain separate accounting records, on a
loan-by-loan and property-by-property basis when appropriate, for the purpose of
justifying any withdrawal from the Certificate Account.
(b) The Trustee, may, from time to time, make withdrawals from the
Lower-Tier Distribution Account for any of the following purposes:
(i) to make deposits of the Lower-Tier Distribution Amount and to
make distributions on the Class LR Certificates, in each case pursuant
to section 4.01(b);
(ii) to make deposits of the amount of any Yield Maintenance
Charges distributable pursuant to Section 4.01(d) in the Upper-Tier
Distribution Account;
(iii) to pay to the Trustee, the Fiscal Agent or any of their
directors, officers, employees, agents, and "control persons" within
the meaning of the Securities Act and the Exchange Act ("Control
Persons"), as the case may be, any amounts payable or reimbursable to
any such Person pursuant to Section 8.05(b);
(iv) to clear and terminate the Lower-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(c) The Trustee may make withdrawals from the Upper-Tier Distribution
Account for any of the following purposes:
(i) to make distributions to Certificateholders (other than
Holders of the Class LR Certificates) on each Distribution Date
pursuant to Section 4.01 or 9.01, as applicable; and
(ii) [Intentionally Omitted]
(iii) to clear and terminate the Upper-Tier Distribution Account
at the termination of this Agreement pursuant to Section 9.01.
(d) Notwithstanding anything herein to the contrary, with respect to
any Mortgage Loan, if amounts on deposit in the Certificate Account are not
sufficient to reimburse the full amount of Advances and interest thereon listed
in Sections 3.05(a)(iv), (v), (vi) and (viii), then reimbursements shall be paid
first to the Fiscal Agent, second, to the Trustee and third to the Servicer.
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SECTION 3.06. Investment of Funds in the Certificate Account, Policy
Escrow Accounts or REO Accounts.
(a) The Servicer may only direct any depository institution maintaining
the Certificate Account or the Policy Escrow Account and the Special Servicer
may direct any depository institution maintaining an REO Account (each, 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. 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 Servicer (in the case of the Certificate Account or
the Policy Escrow Account) or the Special Servicer (in the case an REO Account),
on behalf of the Trustee, shall maintain continuous possession of any Permitted
Investment of amounts in the Certificate Account, the Policy Escrow Account or
REO Account that is either (i) a "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. In the event
amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Servicer or, in the case of an REO
Account, the Special Servicer shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the
lesser of (a) all amounts then payable thereunder and (b) the amount
required to be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Servicer, the Special Servicer or the Trustee, as
the case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Interest and investment income realized on funds deposited in the
Certificate Account, to the extent of the Net Investment Earnings, if any, with
respect to such account for each period from any Distribution Date to the
immediately succeeding Servicer Remittance Date, shall be for the sole and
exclusive benefit of the Servicer and shall be subject to its withdrawal, or
withdrawal at its direction, in accordance with Section 3.05(a), 3.05(b) or
3.05(c), as the case may be.
(c) Interest and investment income realized on funds deposited in the
Policy Escrow Account shall be used to pay any interest on Advances made with
respect to, or any other expenses of the Trust Fund, allocable to the related
CTL Loan, and the Servicer shall not be entitled to any such interest or
investment income. The Servicer shall not be liable for any loss incurred in
respect of any Permitted Investment on deposit in any Policy Escrow Account.
(d) Interest and investment income realized on funds deposited in the
REO Account, to the extent of the Net Investment Earnings, if any, with respect
to such account for each period from any Distribution Date to the immediately
succeeding Servicer Remittance Date,
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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(c).
(e) In the event that any loss shall be incurred in respect of any
Permitted Investment on deposit in the Certificate Account or an REO Account,
the Servicer or the Special Servicer (in the case of any REO Account) shall
deposit therein, no later than the Servicer Remittance Date, without right of
reimbursement, the amount of the Net Investment Loss, if any, with respect to
such account for the period from the immediately preceding Distribution Date to
such Servicer Remittance Date.
(f) 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, the Trustee or the Servicer on its behalf may and, subject to
Section 8.02, upon the request of Holders of Certificates entitled to a majority
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.
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
(a) The Servicer shall use its reasonable best efforts consistent with
the Servicing Standard to cause the Mortgagor to maintain, to the extent
required by the terms of the related Mortgage Note, all Insurance Policy
coverage required under the related Mortgage (to the extent that the Trustee has
an insurable interest), or if the related borrower does not maintain such
Insurance Policy coverage and such Insurance Policy coverage is available at
commercially reasonable rates), consistent with the Servicing Standard, the
Servicer shall itself maintain such coverage with Qualified Insurers; provided,
however, that if the Servicer obtains such insurance, the related Insurance
Policy shall include a replacement cost endorsement providing for no deduction
for depreciation but in any event in an amount sufficient to avoid the
application of any co-insurance clause unless otherwise permitted in the related
Mortgage Loan documents; provided further, that if any of the related Loan
Documents permits the holder thereof to dictate to the Mortgagor the Insurance
Policy coverage to be maintained on such Mortgaged Property, the Servicer shall
impose such insurance requirements as are consistent with the Servicing
Standard; provided further, that the Servicer shall not be required to maintain
earthquake insurance on any Mortgaged Property unless such insurance was
required at origination and is available at commercially reasonable rates;
provided further, that the Special Servicer shall have the right, but not the
obligation, to maintain earthquake insurance at its expense on any Mortgaged
Property. Subject to Section 3.17(a), the Special Servicer shall maintain for
each REO Property no less Insurance Policy coverage than was previously required
of the Mortgagor under the related Mortgage Loan with Qualified Insurers.
All such Insurance Policies shall (i) contain a "standard" mortgagee
clause, with loss payable to the Servicer on behalf of the Trustee (in the case
of insurance maintained in respect of the Mortgage Loans other than REO
Properties), (ii) 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) include coverage in an amount not less than the lesser of the full
replacement cost of the REO Property without reduction for depreciation or the
outstanding principal balance owing on the related REO Loan but in any event in
an amount sufficient to avoid the application
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of any co-insurance clause unless otherwise permitted in the related Mortgage
Loan documents and (iv) be issued by a Qualified Insurer authorized under
applicable law to issue such Insurance Policies.
With respect to any other Mortgage Loan that requires or permits the
related lender to require that earthquake insurance be maintained, the Directing
Certificateholder may request that earthquake insurance be secured for one or
more Mortgaged Properties and, upon such request, the Servicer or Special
Servicer, as applicable, shall use its reasonable best efforts consistent with
the Servicing Standard to enforce such obligations consistent with the terms of
the related Loan Documents, provided, however, that the Directing
Certificateholder may not make such request with respect to Mortgaged Properties
with respect to which earthquake insurance was not required to be maintained at
origination unless there is a material adverse change in the facts and
circumstances relating to the Mortgaged Property, including a decline in the net
operating income or appraised value of the Mortgaged Property by 10%.
With respect to any Mortgage Loan (i) that does not require or permit
the related lender to require that earthquake insurance be maintained or (ii)
that the Servicer or Special Servicer, as applicable, has been unable to enforce
the provisions of the preceding sentence, the Directing Certificateholder may
request that earthquake insurance be secured by the Servicer or Special
Servicer, as applicable, at the expense of the Directing Certificateholder.
Any amounts collected by the Servicer or the Special Servicer under any
such Insurance Policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property or REO Property or amounts to be
released to the related Mortgagor, in each case in accordance with the Servicing
Standard and the provisions of the related Mortgage Loan) shall be deposited in
the Certificate Account, subject to withdrawal pursuant to Section 3.05(a).
Unless otherwise specified herein, any costs incurred by the Servicer
in maintaining any such Insurance Policies (other than in respect of REO
Properties) (i) shall be advanced by the Servicer (or, if required by Section
3.03(c) the Trustee or the Fiscal Agent, as applicable) as a Servicing Advance
(unless determined to be a Nonrecoverable Advance) if the Mortgagor defaults on
its obligation to do so, and will be charged to the related Mortgagor, and (ii)
shall not, for purposes thereof, including, without limitation, calculating
monthly distributions to Certificateholders, be added to the unpaid principal
balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit. Any cost incurred by the Special Servicer in
maintaining any such Insurance Policies with respect to REO Properties shall be
an expense of the Trust payable out of the related REO Account pursuant to
Section 3.16(c) or, if the amount on deposit therein is insufficient therefor,
advanced by the Servicer (or, if required by Section 3.03(c), the Trustee or the
Fiscal Agent, as applicable) as a Servicing Advance.
(b) If the Servicer or the Special Servicer shall obtain and maintain a
blanket Insurance Policy with a Qualified Insurer insuring against fire and
hazard losses on all of the Mortgage Loans or REO Properties, as the case may
be, required to be serviced and administered hereunder, then, to the extent such
Insurance Policy provides protection equivalent to the individual policies
otherwise required, the Servicer or the Special Servicer shall conclusively be
deemed to have satisfied its obligation to cause fire and hazard insurance to be
maintained on the related Mortgaged Properties or REO Properties. Such Insurance
Policy may contain a deductible clause, in which case the Servicer or the
Special Servicer shall, if there shall not have
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been maintained on the related Mortgaged Property or REO Property a fire and
hazard Insurance Policy complying with the requirements of Section 3.07(a), and
there shall have been one or more losses which would have been covered by such
Insurance Policy, promptly deposit into the Certificate Account from its own
funds the amount of such loss or losses that would have been covered under the
individual policy but are not covered under the blanket Insurance Policy because
of such deductible clause to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Mortgage Loan, or in the
absence of such deductible limitation, the deductible limitation which is
consistent with the Servicing Standard. In connection with its activities as
administrator and servicer of the Mortgage Loans, the Servicer agrees to prepare
and present, on behalf of itself, the Trustee and Certificateholders, claims
under any such blanket Insurance Policy in a timely fashion in accordance with
the terms of such policy. In the event the Servicer or the Special Servicer
shall cause any Mortgaged Property or REO Property to be covered by such blanket
insurance policy, the incremental costs of such insurance applicable to such
Mortgaged Property or REO Property (i.e., other than any minimum or standby
premium payable for such policy whether or not any Mortgaged Property or REO
Property is covered thereby) shall be paid by the Servicer (or, if required by
Section 3.03(c), the Trustee or the Fiscal Agent, as applicable) as a Servicing
Advance. The Special Servicer, to the extent consistent with the Servicing
Standard, may maintain, earthquake insurance on REO Properties, provided
coverage is available at commercially reasonable rates, the cost of which shall
be a Servicing Advance made by the Servicer.
(c) Each of the Servicer and the Special Servicer shall obtain and
maintain at its own expense and keep in full force and effect throughout the
term of this Agreement a blanket fidelity bond and an errors and omissions
Insurance Policy with a Qualified Insurer covering the Servicer's and the
Special Servicer's, as applicable, officers and employees and other persons
acting on behalf of the Servicer and the Special Servicer in connection with its
activities under this Agreement with a deductible clause that in no event
exceeds the greater of (i) $100,000 or (ii) 5% of the face amount of the
fidelity bond or errors and omissions policy. The Servicer or the Special
Servicer, as applicable, shall cause the Trustee, on behalf of the Trust, to be
named as a loss payee on each such fidelity bond and errors and omissions
policy. Notwithstanding the foregoing, (a) coverage in the form reflected on the
attached Exhibit J shall be deemed to satisfy the Servicer's and the Special
Servicer's obligations with respect to the maintenance of errors and omissions
insurance, and (b) so long as the long term debt or the deposit obligations or
claims-paying ability of the Servicer (or its immediate or remote parent) is
rated at least "A2" by Moody's and "A" by Fitch IBCA (or, if not rated by Fitch
IBCA, upon written confirmation by Fitch IBCA that self-insurance by the
Servicer with respect to a fidelity bond would not by reason thereof cause Fitch
IBCA to qualify, downgrade or withdraw the then-current rating assigned to any
of the Certificates that are currently being rated by Fitch IBCA), the Servicer
(or the Servicer's immediate or remote parent) shall be allowed to provide
self-insurance with respect to a fidelity bond; provided, however, that if such
self-insurance is provided by the Servicer's immediate or remote parent, the
Servicer shall deliver to each Rating Agency a copy of the agreement pursuant to
which such parent is obligated to insure the Servicer with respect to a fidelity
bond. The amount of coverage shall be at least equal to the coverage that would
be required by FNMA or FHLMC, whichever is greater, with respect to the Servicer
or the Special Servicer if the Servicer or the Special Servicer, as applicable,
were servicing and administering the Mortgage Loans or Specially Serviced
Mortgage Loans, as applicable, for FNMA or FHLMC. Coverage of the Servicer or
the Special Servicer under a policy or bond obtained by an Affiliate of the
Servicer or the Special Servicer and providing the coverage required by this
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Section 3.07(c) shall satisfy the requirements of this Section 3.07(c). The
Special Servicer and the Servicer will promptly report in writing to the Trustee
any material changes that may occur in their respective fidelity bonds, if any,
and/or their respective errors and omissions Insurance Policies, as the case may
be, and will furnish to the Trustee copies of all binders and policies or
certificates evidencing that such bonds, if any, and insurance policies are in
full force and effect.
(d) During all such times as any Mortgaged Property shall be in a
federally designated special flood hazard area (and such flood insurance has
been made available), the Servicer will use its reasonable best efforts
consistent with the Servicing Standard to cause the related Mortgagor (in
accordance with applicable law and the terms of the Mortgage Loan documents) to
maintain, and, if the related Mortgagor shall default in its obligation to so
maintain, shall itself maintain to the extent available at commercially
reasonable rates (as determined by the Servicer in accordance with the Servicing
Standard), flood insurance in respect thereof, but only to the extent the
related Mortgage Loan permits the mortgagee to require such coverage and the
maintenance of such coverage is consistent with the Servicing Standard. Such
flood insurance shall be in an amount not less than the lesser of (i) the unpaid
principal balance of the related Mortgage Loan, and (ii) the maximum amount of
insurance which is available under the Flood Disaster Protection Act of 1973, as
amended. If the cost of any insurance described above is not borne by the
Mortgagor, the Servicer shall promptly make a Servicing Advance for such costs,
subject to Section 3.03(c).
(e) During all such times as any REO Property shall be located in a
federally designated special flood hazard area, the Special Servicer will cause
to be maintained, to the extent available at commercially reasonable rates (as
determined by the Special Servicer in accordance with the Servicing Standard), a
flood insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration in an amount representing coverage not less
than the maximum amount of insurance which is available under the Flood Disaster
Protection Act of 1973, as amended. The cost of any such flood insurance with
respect to an REO Property shall be an expense of the Trust payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, paid by the Servicer or the Trustee or Fiscal
Agent, as applicable, as a Servicing Advance.
(f) On or prior to the Closing Date, the Mortgage Loan Sellers shall
notify the Lease Enhancement Insurer and the Residual Value Insurer that the
Trustee on behalf of the Certificateholders is an additional insured or loss
payee and that both the Servicer and the Special Servicer shall be sent notices
under the Lease Enhancement Policy and Residual Value Policy, as applicable. If
a Servicing Officer of the Servicer or Special Servicer has actual knowledge of
any event of casualty or condemnation or other event giving rise to a claim
under any Lease Enhancement Policy or within the earlier of (A) 60 days prior to
the Maturity Date of a CTL Loan that has a Balloon Payment and is covered by a
Residual Value Policy or (B) the earliest date on which notice can be given
pursuant to such Residual Value Policy but no earlier than 60 days prior to such
Maturity Date (each such event, an "Insured Event"), the Servicer shall notify
the Special Servicer thereof (within three Business Days after learning of such
event). The Special Servicer shall prepare and file on behalf of the Trustee for
the benefit of the Certificateholders a "proof of loss" form or "notice of
preliminary claim" or "notice of final claim," as applicable, with the related
Lease Enhancement Insurer or Residual Value Insurer within five Business Days
after receiving notice of any Insured Event under the related policy and shall
diligently process any claims under such policy in accordance with the Servicing
Standard and such Lease Enhancement Policy or Residual Value Policy, as
applicable. The
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Special Servicer shall give notice to the Servicer of any claim made under any
Lease Enhancement Policy or Residual Value Policy and of any Lease Enhancement
Policy Termination Event or Residual Value Policy Termination Event of which the
Servicer does not already have notice. Each of the Servicer and the Special
Servicer shall become familiar with the terms of any Residual Value Policy and
Lease Enhancement Policy and give all other notices or take any other action
necessary on behalf of the Trustee for the benefit of the Certificateholders in
order to maintain the benefits of such Residual Value Policy or Lease
Enhancement Policy on behalf of the Trustee for the benefit of the
Certificateholders in accordance with the Servicing Standard. The Servicer and
the Special Servicer shall keep in effect all Residual Value Policies and Lease
Enhancement Policies that are in effect as of the Closing Date subject to the
Servicing Standard and the other provisions herein. In furtherance of the
foregoing, the Trustee shall assist the Servicer or the Special Servicer as
requested by the Servicer or the Special Servicer.
If a Servicing Officer of the Servicer or a Responsible Officer of the
Trustee receives notice of any abatement, rescission, cancellation, termination,
contest, legal process, arbitration or disavowal of liability with respect to
any Lease Enhancement Policy or Residual Value Policy (each, a "Lease
Enhancement Policy Termination Event" or "Residual Value Policy Termination
Event," as applicable), the Servicer or the Trustee shall, within three Business
Days after receipt of such notice, notify the Special Servicer of such Lease
Enhancement Policy Termination Event or Residual Value Policy Termination Event
in writing. Upon receipt of such notice, the Special Servicer shall,
notwithstanding that the servicing of the related CTL Loan may not have been
transferred to the Special Servicer in accordance with Section 3.21 hereof,
address such Lease Enhancement Policy Termination Event or Residual Value Policy
Termination Event in accordance with the Servicing Standard. Any legal fees or
other related expenses incurred in connection with a resolution of a Lease
Enhancement Policy Termination Event or Residual Value Policy Termination Event
shall be paid by the Servicer and shall be reimbursable to it as a Servicing
Advance.
SECTION 3.08. Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) As to each Mortgage Loan or Specially Serviced Mortgage Loan which
contains a provision in the nature of a "due-on-sale" clause, which by its
terms:
(i) provides that such Mortgage Loan or Specially Serviced
Mortgage Loan shall (or may at the mortgagee's option) become due and
payable upon the sale or other transfer of an interest in the related
Mortgaged Property or
(ii) provides that such Mortgage Loan or Specially Serviced
Mortgage Loan may not be assumed without the consent of the mortgagee
in connection with any such sale or other transfer,
for so long as such Mortgage Loan is included in the Trust Fund, the Servicer,
and, in the case of any Specially Serviced Mortgage Loan, the Special Servicer,
in each case on behalf of the Trustee as the mortgagee of record, shall exercise
(or waive its right to exercise) any right it may have with respect, as
applicable, to such Mortgage Loan or Specially Serviced Mortgage Loan (x) to
accelerate the payments thereon or (y) to withhold its consent to any such sale
or other transfer, in a manner consistent with the Servicing Standard.
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(b) As to each Mortgage Loan or Specially Serviced Mortgage Loan which
contains a provision in the nature of a "due-on-encumbrance" clause, which by
its terms:
(i) provides that such Mortgage Loan or Specially Serviced
Mortgage Loan shall (or may at the mortgagee's option) become due and
payable upon the creation of any additional lien or other encumbrance
on the related Mortgaged Property or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property,
for so long as such Mortgage Loan or Specially Serviced Mortgage Loan is
included in the Trust Fund, the Servicer, as to the Mortgage Loans that are not
Specially Serviced Mortgage Loans, or the Special Servicer, as to Specially
Serviced Mortgage Loans, on behalf of the Trustee as the mortgagee of record,
shall exercise (or waive its right to exercise) any right it may have with
respect to such Mortgage Loan (x) to accelerate the payments thereon or (y) to
withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard. The Servicer
and the Special Servicer may charge an assumption fee to the related Mortgagor
pursuant to the related Mortgage Loan documents.
The Servicer shall notify the Special Servicer of any request for
consent to the creation of any additional lien or other encumbrance on any
non-Specially Serviced Mortgage Loan. The Servicer shall not provide such
consent unless it receives written approval from the Special Servicer; provided
however, that the Special Servicer shall be deemed to have given the consent
required by the preceding part of this sentence if it fails to respond to such
notification within 10 business days after receipt, and provided further, the
Servicer receives written confirmation of each of the Rating Agencies as
provided in Section 3.08(e).
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Section 3.20, neither the Servicer
nor the Special Servicer shall agree to modify, waive or amend any term of any
Mortgage Loan in connection with the taking of, or the failure to take, any
action pursuant to this Section 3.08, other than the identity, form or structure
of the borrower pursuant to an assumption agreement.
(e) Notwithstanding anything to the contrary in this Section 3.08,
neither the Servicer nor the Special Servicer shall waive any rights under a
"due-on-encumbrance" clause or, with respect to any Mortgage Loan whose
principal balance is 2% or more of the outstanding pool balance (for such
purposes, treating as a single Mortgage Loan all Mortgage Loans made to the same
Borrower and all Affiliates of any Borrower) under any "due-on-sale" clause with
respect to any Mortgage Loan, unless it obtains from each Rating Agency a
written confirmation that such waiver would not cause a downgrading,
qualification or withdrawal of the rating then assigned to any of the
Certificates; provided, however, that so long as all Holders of each Class of
Certificates, the ratings of which would otherwise be downgraded, qualified or
withdrawn, consent to such waiver in a writing which acknowledges that such
downgrading, qualification or withdrawal can occur, such Rating Agency
confirmation will not be required.
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(f) For each Mortgage Loan or Specially Serviced Mortgage Loan whose
principal balance is 2% or more of the outstanding pool balance (for such
purposes, treating as a single Mortgage Loan all Mortgage Loans made to the same
Borrower and all Affiliates of any Borrower) that contains a provision which
allows the borrower to obtain additional unsecured debt with the consent of the
mortgagee of record, the Servicer, as to the Mortgage Loans that are not
Specially Serviced Mortgage Loans, or the Special Servicer, as to Specially
Serviced Mortgage Loans, on behalf of the Trustee, as the mortgagee of record,
may consent to the creation of additional unsecured debt, provided that the
Servicer or Special Servicer, as applicable, has provided notice to each of the
Rating Agencies of the request to incur additional unsecured debt and has
received written confirmation from each of the Rating Agencies that its consent
to such request will not cause a downgrading, qualification or withdrawal of the
rating then assigned to any of the Certificates.
(g) Notwithstanding any other provisions of this Section 3.08, the
Servicer may grant (with respect to a Mortgage Loan) and the Special Servicer
may grant (with respect to any Specially Serviced Mortgage Loan or REO
Property), without any Rating Agency confirmation as provided in clause (e)
above or in the case of a Mortgage Loan without Special Servicer approval, a
request for consent to subject the related Mortgaged Property or REO 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 Servicer or Special Servicer,
as applicable, shall have determined in accordance with the Servicing Standard
that such easement or right-of-way shall not materially interfere with the
then-current use of the related Mortgaged Property or REO 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 REO Property.
(h) With respect to any CTL Loan having the benefit of a Residual Value
Policy, neither the Servicer nor Special Servicer shall agree to any
modification to, or waiver of, any term of the related Residual Value Policy
without written confirmation by each Rating Agency that such modification or
waiver would not, in and of itself, result in a downgrade, qualification or
withdrawal of any of the current ratings assigned to any Class of the
Certificates.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to subsections (b) through (d)
of this Section 3.09, may at any time, consistent with the Servicing Standard,
foreclose upon or otherwise comparably convert (which may include an REO
Acquisition) the ownership of property securing such Mortgage Loans, as come
into and continue in default as to which no satisfactory arrangements can be
made for collection of delinquent payments (including, in the case of an IDOT
Loan, through demand for payment on the related IDOT Guaranty), and which are
not released from the Trust Fund pursuant to any other provision hereof. The
foregoing is subject to the provision that, in any case in which a Mortgaged
Property shall have suffered damage from an Uninsured Cause, the Servicer shall
not be required to make a Servicing Advance and expend funds toward the
restoration of such property unless the Special Servicer has determined in its
reasonable discretion that such restoration will increase the net proceeds of
liquidation of such Mortgaged Property to Certificateholders after reimbursement
to the Servicer for such Servicing Advance, and the Servicer has determined that
such Servicing Advance together with accrued and unpaid interest thereon will be
recoverable by the Servicer out of the proceeds of liquidation of such Mortgaged
Property, as contemplated in Section 3.05(a)(iv). To
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the extent that the Servicer (or, if required pursuant to Section 3.03(c), the
Trustee or Fiscal Agent) has determined that the same would not constitute a
Nonrecoverable Advance and has made such Advance, the Special Servicer shall be
responsible for distributing such Advance to cover all other costs and expenses
incurred by it in any such proceedings. To the extent that the Servicer or
Special Servicer is a bidder at any foreclosure proceeding, nothing contained in
this Section 3.09 shall be construed so as to require the Servicer or the
Special Servicer, on behalf of the Trust, 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 Servicer or the Special
Servicer in its reasonable and good faith judgment taking into account the
factors described in Section 3.18(d) 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 Special Servicer or the
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, the Special
Servicer or the Servicer, as the case may be, is authorized to have an Appraisal
performed with respect to such property by an Independent Appraiser the cost of
which shall be paid by the Servicer (or, if required by Section 3.03(c), the
Trustee or the Fiscal Agent, as applicable) as a Servicing Advance.
(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 shall be a Servicing Advance) to the effect
that the holding of such personal property by the Trust Fund will not
cause the imposition of a tax on the Lower-Tier REMIC or the Upper-Tier
REMIC under the REMIC Provisions or cause the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC at any time that any
Uncertificated Lower-Tier Interest or Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Special Servicer nor the Servicer shall, on behalf of the Trustee,
obtain title to a Mortgaged Property 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, would be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA or
any comparable law, unless (as evidenced by an Officer's Certificate to such
effect delivered to the Trustee) the Special Servicer has previously determined
in accordance with the Servicing Standard, based on an Environmental Assessment
of such Mortgaged Property performed by an Independent Person who regularly
conducts Environmental Assessments, that:
(i) the Mortgaged Property is in material compliance with
applicable environmental laws and regulations or, if not, that taking
such actions as are necessary to bring the Mortgaged Property in
compliance therewith is reasonably likely to produce a greater recovery
on a present value basis than not taking such actions; and
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(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 be required,
that taking such actions with respect to such Mortgaged Property is
reasonably likely to produce a greater recovery on a present value
basis than not taking such actions.
The cost of any such Environmental Assessment shall be paid by the
Servicer or the Trustee or Fiscal Agent, as applicable, as a Servicing Advance
as the cost of any remedial, corrective or other further action contemplated by
clause (i) and/or clause (ii) of the preceding sentence may be withdrawn from
the Certificate Account at the direction of the Special Servicer as an expense
of the Trust Fund pursuant to Section 3.05(a)(ix); and if any such Environmental
Assessment so warrants, the Special Servicer shall, at the expense of the Trust
Fund, retain an Independent Person who regularly conducts Environmental
Assessments to 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 sentence have been satisfied in each case subject
to the Servicer's determination that such Advances, if made would not be a
Nonrecoverable Advance.
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan and (ii) there has been no
breach of any of the representations and warranties set forth in or required to
be made pursuant to Section 3.2 of the Mortgage Loan Purchase and Sale
Agreements for which the Mortgage Loan Sellers could be required to repurchase
such Defaulted Mortgage Loan pursuant to Section 3.3 of the Mortgage Loan
Purchase and Sale Agreements, then the Special Servicer shall take such action
as it deems to be in the best economic interest of the Trust Fund (other than
proceeding to acquire title to the Mortgaged Property) and is hereby authorized
at such time as it deems appropriate to release such Mortgaged Property from the
lien of the related Mortgage if the Special Servicer has obtained and delivered
to the Trustee an Opinion of Counsel to the effect that such release will not
result in the imposition of tax on the Lower-Tier REMIC or the Upper-Tier REMIC
or cause either the Lower-Tier REMIC or Upper-Tier REMIC to fail to qualify as a
REMIC at any time that any Uncertificated Lower-Tier Interest or Certificates
are outstanding.
(e) The Special Servicer shall promptly provide copies of all written
reports and any Environmental Assessments received from any Independent Person
conducting Environmental Assessments or related testing to the Trustee, the
Paying Agent and the Servicer regarding any actions taken or proposed to be
taken by the Special Servicer with respect to any Mortgaged Property securing a
defaulted Mortgage Loan as to which the environmental testing contemplated in
subsection (c) above has revealed that either of the conditions set forth in
clauses (i) and (ii) of the first sentence thereof has not been satisfied, in
each case until the earlier to occur of satisfaction of both such conditions,
repurchase of the related Mortgage Loan by the applicable Mortgage Loan Seller
or release of the lien of the related Mortgage on such Mortgaged Property. Upon
request, the Trustee shall forward, or cause to be forwarded all such reports to
the Certificateholders and each Rating Agency promptly following the receipt
thereof. In addition, the Servicer will deliver, or cause to be delivered to the
Class E, Class F, Class G,
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Class H and Class I Certificateholders a copy of any such written reports and
any Environmental Assessments within 15 days after receipt of such written
reports and Environmental Assessments from the Special Servicer.
(f) The Servicer shall report to the Internal Revenue Service and the
related Mortgagor, in the manner required by applicable law, the information
required to be reported regarding any Mortgaged Property which is abandoned or
foreclosed and the Servicer shall report, via Form 1099C, all forgiveness of
indebtedness. The Special Servicer shall provide the Servicer with such
information or reports relating to the Specially Serviced Mortgage Loans and REO
Property that the Servicer deems necessary to fulfill its obligations under this
paragraph (f) promptly upon the Servicer's request therefor. The Servicer shall
deliver a copy of any such report to the Trustee and the Special Servicer.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan permit such an action.
(h) The Special Servicer shall prepare and maintain accurate records of
each Final Recovery Determination in respect of a Defaulted Mortgage Loan or REO
Property and the basis thereof. Each Final Recovery Determination shall be
evidenced by an Officer's Certificate delivered to the Trustee and the Servicer
no later than the next succeeding P&I Advance Determination Date.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Servicer or the Special Servicer, as the case may be, of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Servicer or Special Servicer, as the case may be, will immediately notify the
Trustee and request delivery of the related Mortgage File. Any such notice and
request shall be in the form of a Request for Release signed by a Servicing
Officer 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) or remitted to
the Servicer to enable such deposit, have been or will be so deposited. Within
seven Business Days (or within such shorter period as release can reasonably be
accomplished if the Servicer notifies the Trustee of an exigency) of receipt of
such notice and request, the Trustee shall release, or cause any related
Custodian to release, the related Mortgage File to the Servicer or Special
Servicer, as the case may be. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Certificate Account but shall be payable by the related borrower.
(b) From time to time as is appropriate for servicing or foreclosure of
any Mortgage Loan, the Servicer or the Special Servicer shall deliver to the
Trustee a Request for Release signed by a Servicing Officer. Upon receipt of the
foregoing, the Trustee shall deliver or cause the related Custodian to deliver,
the Mortgage File or any document therein to the Servicer or the Special
Servicer (or a designee), as the case may be. Upon return of such Mortgage File
or such document to the Trustee or the related Custodian, or the delivery to the
Trustee of a certificate of a Servicing Officer of the Servicer or the Special
Servicer, as the case may be, stating that such Mortgage Loan was liquidated and
that all amounts received or to be received in
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connection with such liquidation which are required to be deposited into the
Certificate Account pursuant to Section 3.04(a) have been or will be so
deposited, or that such Mortgage Loan has become an REO Property, a copy of the
Request for Release shall be released by the Trustee to the Servicer or the
Special Servicer (or a designee), as the case may be, with the original being
released upon termination of the Trust.
(c) Within five Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents delivered to it by the Special Servicer and necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies or
rights provided by the Mortgage Note or Mortgage or otherwise available at law
or in equity. The Special Servicer shall be responsible for the preparation of
all such documents and pleadings. When submitted to the Trustee for signature,
such documents or pleadings shall be accompanied by a certificate of a Servicing
Officer requesting that such pleadings or documents be executed by the Trustee
and certifying as to the reason such documents or pleadings are required and
that the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
SECTION 3.11. Servicing Compensation; Excess Fixed Yield.
(a) As compensation for its activities hereunder, the Servicer shall be
entitled to receive the Servicing Fee with respect to each Mortgage Loan and REO
Loan net of any amounts applied to cover Prepayment Interest Shortfalls and net
of the Trustee Fee. As to each Mortgage Loan and REO Loan, the Servicing Fee
shall accrue from time to time at the Servicing Fee Rate and shall be computed
on the basis of the Stated Principal Balance of such Mortgage Loan as of the
immediately preceding Distribution Date (in each case, after giving effect to
the distribution of principal of such Mortgage Loan on such Distribution Date)
and a 360-day year consisting of twelve 30-day months and, in connection with
any partial month interest payment, for the same period respecting which any
related interest payment due on such Mortgage Loan or deemed to be due on such
REO Loan is computed. The Servicing Fee with respect to any Mortgage Loan or REO
Loan (and any interest on Advances) shall cease to accrue if a Liquidation Event
occurs in respect thereof. The Servicing Fee shall be payable monthly, on a
loan-by-loan basis, from payments of interest on each Mortgage Loan and REO
Revenues allocable as interest on each REO Loan. The Servicer shall be entitled
to recover unpaid Servicing Fees in respect of any Mortgage Loan or REO Loan out
of that portion of related payments, Insurance and Condemnation Proceeds,
Liquidation Proceeds and REO Revenues (in the case of an REO Loan) allocable as
recoveries of interest, to the extent permitted by Section 3.05(a). The right to
receive the Servicing Fee may not be transferred in whole or in part except in
connection with the transfer of all of the Servicer's responsibilities and
obligations under this Agreement. The Servicer shall pay first from the
Servicing Fee, and then from the Certificate Account, the Trustee Fee. The
amount of the aggregate Prepayment Interest Shortfalls with respect to any
Distribution Date shall be offset by the aggregate of (i) the Servicing Fee (net
of that portion of the Servicing Fee that represents compensation to the
Trustee) and (ii) Excess Fixed Yield, pro rata, based upon the respective
amounts payable to the Servicer and the owner of such Excess Fixed Yield.
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(b) Additional servicing compensation in the form of all assumption and
modification fees (including any extension fees) paid by the Mortgagor on
Mortgage Loans that are not Specially Serviced Mortgage Loans, and only to the
extent that all amounts then due and payable with respect to the related
Mortgage Loan (including interest on Advances) have been paid, and charges for
beneficiary statements or demands and amounts collected for checks returned for
insufficient funds, processing fees and application fees, in each case only to
the extent actually paid by the related Mortgagor, shall be retained by the
Servicer and shall not be required to be deposited in the Certificate Account
pursuant to Section 3.04(a). The Servicer shall also be entitled to additional
servicing compensation in the form of: (i) Penalty Charges received on the
Mortgage Loans (other than any Specially Serviced Mortgage Loans), but only to
the extent actually paid by the related Mortgagor and to the extent that all
amounts then due and payable with respect to the related Mortgage Loan
(including interest on Advances) have been paid and are not needed to pay
interest on Advances with respect to any other Mortgage Loan; (ii) interest or
other income earned on deposits relating to the Trust Fund in the Certificate
Account (but only to the extent of the Net Investment Earnings, if any, with
respect to each such account for each period from any Distribution Date to the
immediately succeeding Servicer Remittance Date), and (iii) interest earned on
deposits in the Servicing Account which are not required by applicable law or
the related Mortgage Loan to be paid to the Mortgagor. The 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 Approved Sub-Servicers chosen and appointed
by it pursuant to the terms of the related Sub-Servicer Agreement and, except as
provided in Section 3.07, the premiums for any blanket Insurance Policy insuring
against hazard losses pursuant to Section 3.07), if and to the extent such
expenses are not payable directly out of the Certificate Account, and the
Servicer shall not be entitled to reimbursement therefor except as expressly
provided in this Agreement.
(c) As compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Special Servicing Fee with respect to each
Specially Serviced Mortgage Loan and REO Loan and interest or other income
earned on deposits relating to the Trust Fund in any REO 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 period from any Distribution
Date to the immediately succeeding Servicer Remittance Date). As to each
Specially Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall
accrue from time to time at the Special Servicing Fee Rate and shall be computed
on the basis of the Stated Principal Balance of such Specially Serviced Mortgage
Loan or REO Loan as of the immediately preceding Distribution Date (in each
case, after giving effect to the distribution of principal of such Mortgage Loan
on such Distribution Date) and a 360-day year consisting of twelve 30-day months
and, in connection with any partial month interest payment, for the same period
respecting which any related interest payment due on such Specially Serviced
Mortgage Loan or deemed to be due on such REO Loan is computed. The Special
Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO Loan
shall cease to accrue if a Liquidation Event occurs in respect thereof. The
Special Servicing Fee shall be payable monthly, on a loan-by-loan basis, to the
extent permitted by Section 3.05(a). The right to receive the Special Servicing
Fee may not be transferred in whole or in part except in connection with the
transfer of all of the Special Servicer's responsibilities and obligations under
this Agreement.
Additional servicing compensation in the form of (a) all assumption
fees received on Specially Serviced Mortgage Loans and (b) all modification fees
(including any extension
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fees) received on Specially Serviced Mortgage Loans, but only to the extent
actually collected from the related Mortgagor and only to the extent that all
amounts then due and payable with respect to the related Mortgage Loan
(including those payable to the Servicer pursuant to Section 3.11(a)) have been
paid, shall be promptly paid to the Special Servicer by the Servicer and shall
not be required to be deposited in the Certificate Account pursuant to Section
3.04(a). The Special Servicer shall also be entitled to additional servicing
compensation in the form of a Workout Fee with respect to each Corrected
Mortgage Loan at the Workout Fee Rate on such Mortgage Loan for so long as it
remains a Corrected Mortgage Loan. The Workout Fee with respect to any Corrected
Mortgage Loan will cease to be payable if such loan again becomes a Specially
Serviced Mortgage Loan; provided, however, that a new Workout Fee will become
payable if and when such Mortgage Loan again becomes a Corrected Mortgage Loan.
If the Special Servicer is terminated pursuant to Section 7.01(c) (other than
for cause) and if the Directing Certificateholder is not an Affiliate of the
Special Servicer or the Servicer, it shall retain the right to receive any and
all Workout Fees payable with respect to Mortgage Loans that became Corrected
Mortgage Loans during the period that it acted as Special Servicer and were
Corrected Mortgage Loans at the time of such termination (and the successor
Special Servicer shall not be entitled to any portion of such Workout Fees), in
each case until the Workout Fee for any such loan ceases to be payable in
accordance with the preceding sentence; provided, however, that at any time that
the Directing Certificateholder is the Servicer, Special Servicer or an
Affiliate thereof, any termination pursuant to Section 7.01(c) other than for
cause will be deemed to be a resignation by the Special Servicer, and, under
such circumstances, the Special Servicer will not have any right to any Workout
Fees following such termination. A Liquidation Fee will be payable with respect
to each Specially Serviced Mortgage Loan as to which the Special Servicer
receives any Liquidation Proceeds subject to the exceptions set forth in the
definition of Liquidation Fee.
Notwithstanding anything to the contrary described above, no
Liquidation Fee will be payable based on, or out of, Liquidation Proceeds
received in connection with the repurchase of any Mortgage Loan by a Mortgage
Loan Seller for a breach of representation or warranty or for defective or
deficient Mortgage Loan documentation, the purchase of any Specially Serviced
Mortgage Loan by the Servicer, the Special Servicer or the Holders of Class LR
Certificates or the purchase of all of the Mortgage Loans and REO Properties in
connection with an optional termination of the Trust Fund pursuant to Section
9.01. If, however, Liquidation Proceeds are received with respect to any
Corrected Mortgage Loan and the Special Servicer is properly entitled to a
Workout Fee, such Workout Fee will be payable based on and out of the portion of
such Liquidation Proceeds that constitute principal and/or interest on such
Mortgage Loan.
The Special Servicer will also be entitled to additional fees in the
form of late fees and other Penalty Charges on Specially Serviced Mortgage
Loans, but only to the extent actually collected from the related Mortgagor and
to the extent that all amounts then due and payable with respect to the related
Mortgage Loan (including interest on Advances) have been paid and are not needed
to pay interest on Advances with respect to any other Mortgage Loan. Neither the
Servicer nor the Special Servicer shall be entitled to receive Excess Interest
with respect to any ARD Loan.
The Special Servicer shall be required to pay out of its own funds all
expenses incurred by it in connection with its servicing activities hereunder
(including, without limitation, payment of any amounts, other than management
fees in respect of REO Properties, due and
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owing to any of its Sub-Servicers and the premiums for any blanket Insurance
Policy obtained by it insuring against hazard losses pursuant to Section 3.07),
if and to the extent such expenses are not payable directly out of the
Certificate Account or the REO Account, and the Special Servicer shall not be
entitled to reimbursement therefor except as expressly provided in this
Agreement.
(d) In determining the compensation of the Servicer or Special
Servicer, as applicable, with respect to Penalty Charges, on any Distribution
Date, the Penalty Charges collected during the related Due Period shall first be
applied to reimburse the Fiscal Agent, the Trustee and the Servicer, in that
order for interest at the Reimbursement Rate on Advances due on such
Distribution Date, and any Penalty Charges remaining thereafter shall be
distributed pro rata to the Servicer and the Special Servicer based upon the
amount of Penalty Charges the Servicer or the Special Servicer would otherwise
have been entitled to receive during such period without any such application.
(e) In order to induce the Servicer to enter into this Agreement and
for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Banc One, in its individual capacity, is irrevocably
entitled to receive the Excess Fixed Yield irrespective of any termination of
Banc One as Servicer. As to each Mortgage Loan (other than the Mortgage Loans
identified as ML-146, ML-147 and ML-148), the Excess Fixed Yield shall accrue
from time to time at the Excess Fixed Yield Rate and shall be computed on the
basis of the Stated Principal Balance of such Mortgage Loans as of the
immediately preceding Distribution Date (in each case, after giving effect to
the distribution of principal of such Mortgage Loans on such Distribution Date)
and a 360-day year consisting of twelve 30-day months and, in connection with
any partial month interest payment, for the same period respecting which any
related interest payment due on such Mortgage Loan or deemed to be due on such
REO Loan is computed, in each case as reduced by any Prepayment Interest
Shortfalls. The Excess Fixed Yield with respect to any Mortgage Loan or REO Loan
shall cease to accrue if a Liquidation Event occurs in respect thereof. The
Excess Fixed Yield shall be payable monthly, on a loan-by-loan basis, from
payments of interest on each Mortgage Loan and REO Revenues allocable as
interest on each REO Loan. The Servicer shall recover unpaid Excess Fixed Yield
in respect of any Mortgage Loan or REO Loan out of that portion of related
payments, Insurance and Condemnation Proceeds, Liquidation Proceeds and REO
Revenues (in the case of an REO Loan) allocable as recoveries of interest, to
the extent permitted by Section 3.05(a). Banc One, by the execution and delivery
of this Agreement, acknowledges and accepts the Depositor's assignment to it of
the Excess Fixed Yield. Subsequent assignments of the Excess Fixed Yield may
only be made if the assignee enters into an assignment and assumption agreement
with Banc One with respect to the right to receive the Excess Fixed Yield and
such assignee shall be an Institutional Accredited Investor or a Qualified
Institutional Buyer.
SECTION 3.12. Inspections; Collection of Financial Statements.
(a) The Servicer shall perform (at its own expense), or shall cause to
be performed (at its own expense), a physical inspection of each Mortgaged
Property at such times and in such manner as are consistent with the Servicing
Standard, but in any event shall inspect each Mortgaged Property securing a
Mortgage Note with a Stated Principal Balance of (a) $2,000,000 or more at least
once every 12 months and (b) less than $2,000,000 at least once every 24 months,
in each case commencing in the calendar year 2000; provided, however, that if
the Servicer has a reasonable basis to believe that (i) the Debt Service
Coverage Ratio with respect to any Mortgaged Property has decreased by 25% or
more from the Debt Service
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Coverage Ratio as of the Cut-off Date or (ii) the Debt Service Coverage Ratio
with respect to any Mortgaged Property (other than a Mortgaged Property securing
a CTL Loan) has decreased to 1.05x or less, the Servicer shall inspect the
related Mortgaged Property as soon as practicable thereafter (the reasonable
cost of which inspection shall be at the expense of the Trust Fund); provided,
further, however, that if any scheduled payment becomes more than 60 days
delinquent on the related Mortgage Loan, the Special Servicer shall inspect the
related Mortgaged Property as soon as practicable thereafter. The cost of such
inspection by the Special Servicer shall be an expense of the Trust Fund. The
Special Servicer or the Servicer, as applicable, shall prepare or cause to be
prepared a written report of each such inspection detailing the condition of the
Mortgaged Property and specifying the existence of (i) any vacancy in the
Mortgaged Property that the preparer of such report deems material, (ii) any
sale, transfer or abandonment of the Mortgaged Property, (iii) any adverse
change in the condition of the Mortgaged Property that the preparer of such
report deems material and (iv) any visible waste committed on the Mortgaged
Property. The Special Servicer shall have the right to inspect or cause to be
inspected (at its own expense) every calendar year any Mortgaged Property
related to a loan that is not a Specially Serviced Mortgage Loan, provided that
the Special Servicer notifies the Servicer prior to such inspection, and
provides a copy of such inspection to the Servicer. If the Special Servicer
performs such inspection in accordance with the Servicing Standard and other
provisions of this paragraph (a) and of the related Loan Documents, such
inspection shall satisfy the Servicer's inspection obligations pursuant to this
paragraph (a). The Special Servicer and the Servicer shall deliver a copy of
each such report prepared by the Special Servicer and the Servicer,
respectively, to the other, each of the Rating Agencies and the Trustee, and the
Trustee shall deliver such reports to the Underwriters, the Initial Purchasers
and, upon request, the Directing Certificateholder.
(b) The Servicer, or with respect to Specially Serviced Mortgage Loans,
the Special Servicer, as applicable, shall make reasonable best efforts
consistent with the Servicing Standard to collect promptly from each Mortgagor
annual and quarterly operating statements and rent rolls of the related
Mortgaged Property, financial statements of such Mortgagor and any other reports
required to be delivered under the terms of the Mortgage Loans, if delivery of
such items is required pursuant to the terms of the related Mortgage. The
Special Servicer or Servicer, as applicable, shall promptly: (i) review all such
items as may be collected and (ii) prepare written reports in the form of
Exhibits I-7 and I-8 based on such reviews identifying the Debt Service Coverage
Ratios for the related Mortgage Loans. The Special Servicer shall deliver copies
of the collected items, and the written reports in the form of Exhibits I-7 and
I-8 or in a format acceptable to Servicer, in each case within 20 days of its
receipt or preparation, as applicable, but in no event less than annually by
June 30th of each year beginning in October 1999. The Servicer shall deliver
copies of the collected items, and of reports in the form of Exhibits I-7 and
I-8 in respect of the written reports prepared in respect thereof or received
from the Special Servicer in an electronic format mutually agreed upon by the
Servicer and the Trustee, to the Trustee and the Special Servicer and each of
the Rating Agencies. To the extent received from the Servicer, the Trustee shall
deliver reports in the form of Exhibits I-7 and I-8 to the Underwriters, the
Initial Purchasers and each Holder of a Class E, Class F, Class G, Class H and
Class I Certificate, via diskette or other electronic transmission and, upon
request, by written report to follow, in each case (other than quarterly
operating statements received by the Servicer, which will be provided to the
Rating Agencies and the Directing Certificateholder, and otherwise, only upon
request (which such request may state that such operating statements be
delivered until further notice) within 30 days of its receipt or preparation, as
applicable,
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beginning in October 1999 but thereafter in no event less frequently than
annually by June 30th of each year.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Servicer and the Special Servicer will deliver to the
Trustee, with a copy to the Paying Agent, each Rating Agency and the Depositor,
on or before April 30th of each year, beginning April 30, 2000, an Officer's
Certificate stating, as to each signer thereof, that (i) a review of the
activities of the 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 Servicer or the Special Servicer, as the
case may be, has maintained an effective internal control system relating to its
servicing of the Mortgage Loans serviced by it and has fulfilled in all material
respects its obligations under this Agreement 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 Servicer or the Special Servicer, as the case may be, has received no notice
regarding qualification, or challenging the status, of either the Lower-Tier
REMIC or the Upper-Tier REMIC as a REMIC from the Internal Revenue Service or
any other governmental agency or body or, if it has received any such notice,
specifying the details thereof. A copy of such Officer's Certificate may be
obtained by Certificateholders upon written request to the Trustee pursuant to
Section 8.12 hereof.
SECTION 3.14. Reports by Independent Public Accountants.
Each of the Servicer and the Special Servicer at their own expense
shall cause a nationally recognized firm of independent certified public
accountants to furnish to the Servicer or the Special Servicer, as the case may
be, the Trustee, the Paying Agent and each Rating Agency, on or before April
30th of each year, commencing with 2000, a report stating that (i) it has
obtained from the Servicer or the Special Servicer, as the case may be, a letter
of representation regarding certain matters from the management of the Servicer
or the Special Servicer, as the case may be, which includes an assertion that
the Servicer or the Special Servicer, as the case may be, has maintained an
effective internal control system with respect to the servicing of the Mortgage
Loans and has complied with certain minimum mortgage loan servicing standards
(to the extent applicable to commercial, multifamily, industrial, hotel, nursing
home, congregate care, medical office, credit-tenant lease or manufactured
housing community mortgage loans), identified in the Uniform Single Attestation
Program for Mortgage Bankers established by the Mortgage Bankers Association of
America, with respect to the Servicer's or the Special Servicer's, as the case
may be, servicing of commercial, multifamily, industrial, hotel, nursing home,
congregate care, medical office, credit-tenant lease or manufactured housing
community mortgage loans during the most recently completed calendar year and
(ii) on the basis of an examination conducted by such firm in accordance with
standards established by the American Institute of Certified Public Accountants,
such assertion is fairly stated in all material respects, subject to such
exceptions and other qualifications that, in the opinion of such firm, such
standards require it to report. In rendering its report such firm may rely, as
to the matters relating to the direct servicing of commercial, multifamily and
manufactured housing community mortgage loans by Sub-Servicers, upon comparable
reports of firms of independent certified public accountants rendered on the
basis of examinations conducted in accordance with the same standards (rendered
within 1 year of such statement) with respect to those Sub-Servicers.
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SECTION 3.15. Access to Certain Information.
Each of the Servicer and the Special Servicer shall provide or cause to
be provided to any Certificateholder or Certificate Owner that is, or is
affiliated with, a federally insured financial institution, the Trustee, the
Depositor, each Rating Agency, to the Servicer, or to the Special Servicer, as
applicable, and to the OTS, the FDIC, the Federal Reserve Board and the
supervisory agents and examiners of such boards and such corporations, and any
other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder, and each Holder of a Class E,
Class F, Class G, Class H and Class I Certificate, access to any documentation
regarding the Mortgage Loans and the Trust Fund within its control which may be
required by this Agreement or by applicable law. Such access shall be afforded
without charge but only upon reasonable prior written request and during normal
business hours at the offices of the Servicer or the Special Servicer, as the
case may be, designated by it; provided, however, that the Class E, Class F,
Class G, Class H and Class I Certificateholders shall be required to pay a
reasonable and customary fee for access to the aforementioned information, shall
pay their own photocopying costs and execute a reasonable and customary
confidentiality agreement with respect to such information. Nothing in this
Section 3.15 shall detract from the obligation of the Servicer and the Special
Servicer to observe any applicable law prohibiting disclosure of information
with respect to the Mortgagors, and the failure of the Servicer or the Special
Servicer to provide access as provided in this Section 3.15 as a result of such
obligation shall not constitute a breach of this Section 3.15. The Servicer and
the Special Servicer may each deny any of the foregoing persons access to
confidential information or to any intellectual property which the Servicer or
the Special Servicer is restricted by license or contract from disclosing.
Notwithstanding the foregoing, the Servicer and the Special Servicer shall
maintain separate from such confidential information and intellectual property,
all documentation regarding the Mortgage Loans that is not confidential.
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 on behalf of the Certificateholders. The
Special Servicer, on behalf of the Trust Fund, shall sell any REO Property prior
to the close of the third calendar year following the year in which the Trust
Fund acquires ownership of such REO Property, within the meaning of Treasury
Regulations Section 1.856-6(b)(1), for purposes of Section 860G(a)(8) of the
Code, unless the Special Servicer either (i) is granted an extension of time (an
"REO Extension") by the Internal Revenue Service to sell such REO Property or
(ii) obtains for the Trustee and the Servicer an Opinion of Counsel (the cost of
which shall be paid as a Servicing Advance), addressed to the Trustee and the
Servicer, to the effect that the holding by the Trust Fund of such REO Property
subsequent to such third anniversary of such acquisition will not result in the
imposition of taxes on "prohibited transactions" (as defined in Section 860F of
the Code) of the Trust Fund or the Lower-Tier REMIC or the Upper-Tier REMIC
constituted thereby or cause either the Lower-Tier REMIC or the Upper-Tier REMIC
to fail to qualify as a REMIC at any time that any Uncertificated Lower-Tier
Interests or 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 longer 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 being granted the REO Extension
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contemplated by clause (i) of the second preceding sentence shall be an expense
of the Trust Fund payable out of the Certificate Account pursuant to Section
3.05(a).
(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 or cause to be established and maintain or cause to be
maintained, one or more REO Accounts, 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. Subject to Section 3.17, the Special Servicer shall deposit, or cause
to be deposited, in the REO Account, within one Business Day after receipt, all
REO Revenues, Insurance and Condemnation Proceeds and Liquidation Proceeds
received by it in respect of an REO Property. Funds in the REO Account may only
be invested in Permitted Investments in accordance with Section 3.06. The
Special Servicer shall give notice to the Trustee and the 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, leasing, 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. No later than 12:00 p.m. Central
time on the Business Day immediately following each Determination Date, the
Special Servicer shall deposit into the Certificate Account the aggregate of all
amounts received in respect of each REO Property during the most recently ended
Due Period, net of any withdrawals made out of such amounts pursuant to the
preceding sentence; provided, however, that the Special Servicer may retain in
such REO Account, in accordance with the Servicing Standard, such portion of
such balance as may be necessary to maintain a reasonable reserve for repairs,
replacements, leasing, management and tenant improvements and other related
expenses for the related REO Property. In addition, no later than 3:00 p.m.
Central time on the Business Day immediately following each Determination Date,
the Special Servicer shall provide the Servicer with an accounting, on a loan by
loan basis in an electronic format reasonably determined by the Servicer, of
amounts deposited in the Certificate Account on such date.
(d) The Special Servicer shall keep and maintain separate records, on a
property-by-property basis, for the purpose of accounting for all deposits to,
and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
SECTION 3.17. Management of REO Property.
(a) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect, operate and lease such REO Property for the
benefit of the Certificateholders solely for the purpose of its timely
disposition and sale in a manner that does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or result in the receipt by the Trust Fund of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code.
Subject to the foregoing, however, the Special Servicer shall have full power
and authority to do any and all things in connection therewith as are in the
best interests of and for the benefit of the Certificateholders (as determined
by the Special Servicer in its good faith and reasonable judgment and in
accordance with the Servicing Standard). Subject to this Section 3.17, the
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Special Servicer may earn "net income from foreclosure property" within the
meaning of Code Section 860G(c) if it determines that earning such income is in
the best interests of Certificateholders on a net after-tax basis as compared
with net leasing such REO Property or operating such REO Property on a different
basis. In connection therewith, the Special Servicer shall deposit or cause to
be deposited on a daily basis (and in no event later than the Business Day
following receipt of such funds) in the applicable REO Account all revenues
received by it with respect to each REO Property and the related REO Loan, and
shall withdraw or cause to be withdrawn from the REO Account, to the extent of
amounts on deposit therein with respect to such REO Property, funds necessary
for the proper operation, management, leasing and maintenance of such REO
Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease such
REO Property.
To the extent that amounts on deposit in the REO Account in respect of
any REO Property are insufficient for the purposes set forth in clauses (i) -
(iv) above with respect to such REO Property, the Servicer shall advance from
its own funds such amount as is necessary for such purposes unless the Servicer
determines (as evidenced by an Officer's Certificate delivered to the Trustee,
the Paying Agent and the Depositor) such advances would, if made, constitute
Nonrecoverable Servicing Advances. The Special Servicer shall give the Servicer
and the Trustee not less than five Business Days' notice, together with all
information reasonably requested by the Servicer (upon which the Servicer may
conclusively rely) before the date on which the Servicer is requested to make
any Servicing Advance with respect to an 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).
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms
will give rise to any income that does not constitute Rents from Real
Property;
(ii) permit any amount to be received or accrued under any New
Lease other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon,
and then only if more than 10% of the construction of such building or
other improvement was
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completed before default on the related Mortgage Loan became
imminent, all within the meaning of Section 856(e)(4)(B) of the Code;
or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property on any
date more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Servicer (or, if required by
Section 3.03(c), the Trustee or the Fiscal Agent, as applicable) as a Servicing
Advance) to the effect that such action will not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code at any time that it is held by the Trust Fund, in which case the
Special Servicer may take such actions as are specified in such Opinion of
Counsel.
(c) The Special Servicer shall contract with any Independent Contractor
for the operation and management of any REO Property within 90 days of the
acquisition date thereof, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be an
expense of the Trust Fund) shall be reasonable and customary in light
of the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees
and such costs and expenses) to the Special Servicer for deposit in the
REO Account no less frequently than monthly;
(iv) none of the provisions of this Section 3.17(c) relating to
any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of
its duties and obligations hereunder with respect to the operation and
management of any such REO Property; and
(v) the Special Servicer shall be obligated with respect thereto
to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
The Special Servicer shall be entitled to enter into any agreement with
any Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer and the Trust
by such Independent Contractor, and nothing in this Agreement shall be deemed to
limit or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to the
Trustee and the Servicer a statement prepared by the Special Servicer setting
forth the amount of net income or net loss, as determined for federal income tax
purposes, resulting from the operation and
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management of a trade or business on, the furnishing or rendering of a
non-customary service to the tenants of, or the receipt of any other amount not
constituting Rents from Real Property in respect of, any REO Property in
accordance with Sections 3.17(a) and 3.17(b).
SECTION 3.18. Sale of Defaulted Mortgage Loans and REO Properties.
(a) Each of the Servicer and the Special Servicer 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 and Section
3.21(e) or as otherwise expressly provided in or contemplated by Section 2.03(b)
and Section 9.01.
(b) In the event that any Mortgage Loan becomes a Defaulted Mortgage
Loan and the Special Servicer has determined in good faith that such Defaulted
Mortgage Loan will become subject to foreclosure proceedings, the Special
Servicer shall promptly so notify in writing the Trustee and the Servicer. The
Special Servicer and the Servicer may at their respective option purchase such
Defaulted Mortgage Loan from the Trust Fund, at a price equal to the Purchase
Price. The Purchase Price for any Defaulted Mortgage Loan purchased hereunder
shall be deposited into the Certificate Account, and the Trustee, upon receipt
of an Officer's Certificate from the Special Servicer to the effect that such
deposit has been made, shall release or cause to be released to the Special
Servicer or the Servicer, as the case may be, the related Mortgage File, and
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, as shall be necessary to vest in the Special Servicer or
the Servicer (in that order), as the case may be, ownership of such Defaulted
Mortgage Loan.
(c) The Special Servicer may offer to sell any Defaulted Mortgage Loan
not otherwise purchased by the Special Servicer or the Servicer pursuant to
subsection (b) above, if and when the Special Servicer determines, consistent
with the Servicing Standard, that such a sale would produce a greater recovery
on a present value basis than would liquidation of the related Mortgaged
Property. Such offering shall be made in a commercially reasonable manner. The
Special Servicer shall accept the highest cash bid received from any Person for
such Defaulted Mortgage Loan in an amount at least equal to the Purchase Price
therefor; provided, that in the absence of any such bid, the Special Servicer
shall accept the highest cash bid received from any Person that is determined by
the Special Servicer to be a fair price for such Defaulted Mortgage Loan. In the
absence of any bid determined (as provided below) to be a fair price, the
Special Servicer shall proceed with respect to such Defaulted Mortgage Loan in
accordance with Section 3.09.
The Special Servicer shall use reasonable best efforts consistent with
the Servicing Standard 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). Such solicitation shall be made in a
commercially reasonable manner. The Special Servicer shall accept the highest
cash bid received from any Person for such REO Property in an amount at least
equal to the Purchase Price therefor; provided, however, that in the absence of
any such bid, the Special Servicer shall accept the highest cash bid received
from any Person that is determined by the Special Servicer to be 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), then 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
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therewith, shall accept the highest outstanding cash bid, regardless of from
whom received. Notwithstanding the foregoing, the Special Servicer shall not be
obligated by the foregoing or otherwise 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 the
event that the Special Servicer determines with respect to any REO Property that
the offers being made with respect thereto are not in the best interests of the
Certificateholders and that the end of the period referred to in Section 3.16(a)
with respect to such REO Property is approaching, the Special Servicer shall
seek an extension of such period in the manner described in Section 3.16(a);
provided, however, that the Special Servicer shall use its reasonable best
efforts consistent with the Servicing Standard, to sell any REO Property prior
to two years prior to the Rated Final Distribution Date.
The Special Servicer shall give the Trustee and the Servicer not less
than five Business Days' prior written notice of its intention to sell any
Defaulted Mortgage Loan or REO Property. No Interested Person shall be obligated
to submit a bid to purchase any Defaulted 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.
(d) 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(c), shall be determined by the Special Servicer, if the highest bidder is a
Person other than the Special Servicer (or the Servicer if the Servicer is also
the Special Servicer) or an Affiliate of either, and by the Trustee, if the
highest bidder is the Special Servicer (or the Servicer if the Servicer is also
the Special Servicer) or an Affiliate of either. In determining whether any bid
received from the Special Servicer or an Affiliate of either represents a fair
price for any Defaulted Mortgage Loan or any REO Property, the Trustee may
conclusively rely on the opinion of an Independent Appraiser or other expert in
real estate matters retained by the Special Servicer at the expense of the Trust
Fund. In determining whether any bid constitutes a fair price for any Defaulted
Mortgage Loan or any REO Property, such 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 Defaulted
Mortgage Loan, the occupancy level and physical condition of the Mortgaged
Property or REO Property, the state of the local economy and the obligation to
dispose of any REO Property within the time period specified in Section 3.16(a).
The Purchase Price for any Defaulted Mortgage Loan or REO Property shall in all
cases be deemed a fair price.
(e) Subject to subsections (a) through (d) above, the Special Servicer
shall act on behalf of the Trustee in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Defaulted Mortgage
Loan or REO Property, and the collection of all amounts payable in connection
therewith. Any sale of a Defaulted Mortgage Loan or any REO Property shall be
final and without recourse to the Trustee or 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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SECTION 3.19. [Intentionally Omitted]
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) Except as set forth in this Section 3.20(a) and Section 3.08, the
Servicer shall not agree to any modification, waiver or amendment of a Mortgage
Loan, and, except as provided in the following paragraph, Section 3.08(e),
Section 3.08(f) and in Section 3.20(d), no Mortgage Loan that is not a Specially
Serviced Mortgage Loan may be modified, waived or amended; provided, however,
that subject to Section 3.21(e) the Special Servicer may agree to extend the
maturity date of a Mortgage Loan that is not a Specially Serviced Mortgage Loan,
provided, further, that no such extension entered into pursuant to this Section
3.20(a) shall be for a period of more than twelve months from the original
maturity date of such Mortgage Loan or shall extend the maturity date beyond the
earlier of (i) two years prior to the Rated Final Distribution Date and (ii) in
the case of a Mortgage Loan secured by a leasehold estate, the date ten years
prior to the expiration of such leasehold estate. If such extension would extend
the Maturity Date of a Mortgage Loan for more than twelve months from and after
the original maturity date of such Mortgage Loan, the Special Servicer may only
enter into such extension if it provides the Trustee with an Opinion of Counsel
(at the expense of the related Mortgagor) that such extension would not
constitute a "significant modification" of the Mortgage Loan within the meaning
of Treasury Regulations Section 1.860G-2(b). Any substitution of collateral
shall be treated hereunder as a modification or amendment of the applicable
Mortgage Loan.
Notwithstanding the foregoing, the Servicer may, consistent with the
Servicing Standard, modify or amend the terms of any Mortgage Loan without the
consent of the Special Servicer in order to (i) cure any ambiguity therein, (ii)
correct or supplement any provisions therein which may be inconsistent with any
other provisions therein or correct any error (iii) waive defaults with respect
to minor covenants (other than financial covenants), including with respect to
late financial statements, to the extent such waiver will not have any material
adverse effect on the rights or interests of the Certificateholders of any
Class, (iv) release parcels of a Mortgaged Property to the extent that any such
release will not have any material adverse effect on the rights or interests of
the Certificateholders of any Class, if each Rating Agency has been notified by
the Servicer of its intent to permit such release and each Rating Agency has
provided written notice that such release will not result in the withdrawal,
qualification or downgrade of its then current rating of any Class of
Certificates (provided that releases as to which the Loan Documents expressly
require the borrower thereunder to make such releases upon the satisfaction of
certain conditions shall be made as required in the Loan Documents) and (v) make
any other modifications, waivers, or amendments which the Servicer determined,
in accordance with the Servicing Standard, are of routine nature and will not
have a material adverse affect on the rights or interests of the
Certificateholders of any Class, in each case, provided that such modification,
waiver or amendment would not be a "significant modification" of the Mortgage
Loan within the meaning of Treasury Regulations Section 1.860G-2(b), and
provided further that the proposed modification, waiver or amendment will not
cause (x) either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify
as a REMIC for purposes of the Code or (y) either the Upper-Tier REMIC or the
Lower-Tier REMIC to be subject to any tax under the REMIC Provisions.
Notwithstanding the foregoing, neither the Servicer nor the Special
Servicer shall permit the substitution of any Mortgaged Property (or any portion
thereof) at any time the Mortgage Loan is not in default pursuant to the terms
of the related Loan Documents unless it
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has received an Opinion of Counsel to the effect that (i) such substitution will
not cause the related Mortgage Loan to fail to qualify as a "qualified mortgage"
for REMIC purposes, (ii) such substitution will not affect the status as a REMIC
of either the Upper Tier REMIC or the Lower Tier REMIC, and (iii) such
substitution will not subject the Trust Fund, the Upper Tier REMIC or the Lower
Tier REMIC to any tax.
Notwithstanding the foregoing, neither the Servicer nor the Special
Servicer shall permit the substitution of any Mortgaged Property pursuant to the
defeasance provisions of any Mortgage Loan at any time such Mortgage Loan is not
in default pursuant to the terms of the related Mortgage Loan documents unless
the Servicer or the Special Servicer, as applicable, has (a) provided notice to
the Rating Agencies of such substitution and has received written confirmation
by each of the Rating Agencies that such substitution will not cause the Rating
Agency to downgrade, withdraw or qualify any of the ratings assigned by the
Rating Agency to any Class of Certificates; and (b) received (i) a certificate
of an Independent Certified public accountant (at the expense of the related
Mortgagor) to the effect that (A) in the event of a total defeasance such
substituted property will provide cash flows sufficient to meet all payments of
interest and principal (including payments at maturity) on such Mortgage Loan,
(B) in the event of a partial defeasance the remaining Mortgaged Properties will
have a Debt Service Coverage Ratio at least equal to the Debt Service Coverage
Ratio required by the related Mortgage Loan documents and (C) in either case
such defeasance is in compliance with the requirements of the terms of the
related Mortgage Loan documents and (ii) one or more Opinions of Counsel (at the
expense of the related Mortgagor) to the effect that (1) such substitution will
not cause the related Mortgage Loan to fail to qualify as a "qualified mortgage"
for REMIC purposes, (2) such substitution will not affect the status as a REMIC
of either the Upper-Tier REMIC or the Lower-Tier REMIC, (3) such substitution
will not subject the Trust Fund, the Upper-Tier REMIC or the Lower-Tier REMIC to
any tax, and (4) the Trustee, on behalf of the Trust Fund, will have a first
priority perfected security interest in such substituted Mortgaged Property and
(5) to the extent permitted by the related Mortgage Loan Documents (and to the
extent that the lender can require the same), the substituted Mortgaged Property
will be held in a special-purpose entity established for this purpose; provided,
however, that to the extent the related Mortgage Loan documents provide the
lender with discretion, the Servicer or the Special Servicer, as applicable,
shall require that the related Mortgagor pay the cost of any such opinion as a
condition to granting such defeasance.
Notwithstanding anything to the contrary herein, with respect to any
Mortgage Loan the outstanding principal balance of which exceeds the lesser of
$15,000,000 or 5% of the outstanding aggregate balance of all Mortgage Loans in
the Trust Fund, the Servicer or Special Servicer, as applicable, will not
consent to the removal or replacement of any property manager or (b) consent to
or approve of (to the extent the related Loan Documents require the related
borrower to obtain the consent to or approval of the related mortgagee) any
transfer of equity of (or equivalent ownership interests in) the related
borrower or of any equity owner of the borrower that is itself required to be a
special purpose entity, if, during the term of such Mortgage Loan, in excess of
49% of such equity (or equivalent) will have been transferred to any other
party, in either case unless notice thereof shall have been given to each Rating
Agency and each Rating Agency shall have confirmed in writing that such action
will not, by itself, result in the downgrade, withdrawal or reduction of its
then-current rating of any outstanding Class of Certificates.
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(b) If, but only if, the Special Servicer determines that a
modification, waiver or amendment (including, without limitation, the
forgiveness or deferral of interest or principal or the substitution of
collateral pursuant to the terms of the Mortgage Loan or otherwise, the release
of collateral or the pledge of additional collateral) of the terms of a
Specially Serviced Mortgage Loan with respect to which a payment default or
other material default has occurred or a payment default or other material
default is, in the Special Servicer's judgment, reasonably foreseeable (as
evidenced by an Officer's Certificate of the Special Servicer), and is
reasonably likely to produce a greater recovery on a net present value basis
(the relevant discounting to be performed at the related Mortgage Rate) than
liquidation of such Specially Serviced Mortgage Loan, then the Special Servicer
may agree to a modification, waiver or amendment of such Specially Serviced
Mortgage Loan, subject to the provisions of this Section 3.20(b) and Section
3.20(c) and Section 3.21(e).
The Special Servicer shall use its reasonable best efforts consistent
with the Servicing Standard to the extent possible to cause each Specially
Serviced Mortgage Loan to fully amortize no later than two years prior to the
Rated Final Distribution Date and shall not agree to a modification, waiver or
amendment of any term of any Specially Serviced Mortgage Loan if such
modification, waiver or amendment would:
(i) extend the maturity date of any such Specially Serviced
Mortgage Loan to a date occurring later than the earlier of (a) two
years prior to the Rated Final Distribution Date and (b) if such
Specially Serviced Mortgage Loan is secured by a leasehold estate, the
date occurring ten years prior to the expiration of such leasehold;
(ii) reduce the net rate at which interest accrues on any such
Specially Serviced Mortgage Loan to less than the lesser of (a) the Net
Mortgage Rate as of the Cut-off Date and (b) the highest Pass-Through
Rate on any Class of Certificate (other than the Class X Certificates);
or
(iii) provide for the deferral of interest unless (a) interest
accrues thereon, generally, at the related Mortgage Rate and (b) the
aggregate amount of such deferred interest does not exceed 10% of the
unpaid principal balance of the Specially Serviced Mortgage Loan.
(c) Any provision of this Section 3.20 to the contrary notwithstanding,
no fee described in this paragraph shall be collected by any Servicer or Special
Servicer from a Mortgagor (or on behalf of the Mortgagor) in conjunction with
any consent or any modification, waiver or amendment of a Mortgage Loan (unless
the amount thereof is specified in the related Mortgage Note) if the collection
of such fee would cause such consent, modification, waiver or amendment to be a
"significant modification" of the Mortgage Note within the meaning of Treasury
Regulations Section 1.860G-2(b).
(d) Notwithstanding anything to the contrary in this Agreement, the
Special Servicer may agree to any waiver, modification or amendment of a
Mortgage Loan that is not in default or as to which default is not reasonably
foreseeable only to the extent that it would not be a "significant modification"
of the Mortgage Loan within the meaning of Treasury Regulations Section
1.860G-2(b), provided that the proposed modification, amendment or waiver will
not cause (x) either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to
qualify as a REMIC
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for purposes of the Code or (y) either the Lower-Tier REMIC or the Upper-Tier
REMIC to be subject to any tax under the REMIC Provisions. With respect to all
modifications, amendments and waivers entered into by the Special Servicer
pursuant to this Section 3.20(d), the Special Servicer shall provide the Trustee
with an Opinion of Counsel (at the expense of the related Mortgagor or such
other Person requesting such modification or, if such expense cannot be
collected from the related Mortgagor or such other Person, to be paid by the
Servicer or the Trustee or Fiscal Agent, as applicable, as a Servicing Advance)
to the effect that the contemplated waiver, modification or amendment (i) will
not be a "significant modification" of the Mortgage Loan within the meaning of
Treasury Regulations Section 1.860G-2(b) and (ii) will not cause either clause
(x) or (y) of this Section 3.20(d) to occur. Notwithstanding the foregoing, the
Special Servicer may not waive the payment of any Prepayment Premiums or Yield
Maintenance Charge with respect to any Mortgage Loan that is not a Specially
Serviced Mortgage Loan.
(e) In the event of a modification to a Mortgage Loan that creates
Mortgage Deferred Interest, such Mortgage Deferred Interest will be allocated to
reduce the Distributable Certificate Interest of one or more Classes of
Certificates pursuant to Section 4.06(a) and will be added to the Certificate
Balance of such Class or Classes pursuant to Section 4.06(b).
(f) Subject to Section 3.20(c), the Servicer and the Special Servicer
each may, as a condition to its granting any request by a Mortgagor for consent,
modification, waiver or indulgence or any other matter or thing, the granting of
which is within the Servicer's or the Special Servicer's, as the case may be,
discretion pursuant to the terms of the instruments evidencing or securing the
related Mortgage Loan and is permitted by the terms of this Agreement, require
that such Mortgagor pay to the Servicer or the Special Servicer, as the case may
be, as additional servicing compensation, a reasonable or customary fee, for the
additional services performed in connection with such request; provided,
however, that the Special Servicer shall not be entitled to compensation with
respect to the assumption of any Mortgage Loan that is not a Specially Serviced
Mortgage Loan.
(g) All modifications, waivers and amendments of the Mortgage Loans
entered into pursuant to this Section 3.20 shall be in writing, signed by the
Servicer or the Special Servicer, as the case may be, and the related Mortgagor
(and by any guarantor of the related Mortgage Loan, if such guarantor's
signature is required by the Servicer or the Special Servicer, as the case may
be, in accordance with the Servicing Standard).
(h) Each of the Servicer and the Special Servicer shall notify the
Rating Agencies, the Trustee and each other in writing of any modification,
waiver or amendment of any term of any Mortgage Loan and the date thereof, and
shall deliver to the Trustee or the related 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 10 Business
Days) following the execution thereof. In addition, the Special Servicer shall
promptly send a copy of such a modification, waiver or amendment to the
Servicer. Within 15 days of the Servicer's delivery of the aforesaid
modification, waiver or amendment to the Trustee or its receipt from the Special
Servicer, as applicable, the Trustee shall forward a copy thereof to each Holder
of a Class E, Class F, Class G, Class H and Class I Certificate.
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SECTION 3.21. Transfer of Servicing Between Servicer and Special
Servicer; Record Keeping; Asset Status Report.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Mortgage Loan, the Servicer shall immediately give notice
thereof, and shall deliver the related Mortgage File and Credit File to the
Special Servicer and shall use its reasonable best efforts consistent with the
Servicing Standard to provide the Special Servicer with all information,
documents and records (including records stored electronically on computer
tapes, magnetic discs and the like) relating to the Mortgage Loan and reasonably
requested by the Special Servicer to enable it to assume its functions hereunder
with respect thereto. The Special Servicer may conclusively rely upon any such
documentation or information supplied to it by the Servicer, in the absence of
manifest error. The Servicer shall use its reasonable best efforts consistent
with the Servicing Standard to comply with the preceding sentence within 5
Business Days of the occurrence of each related Servicing Transfer Event and in
any event shall continue to act as Servicer and administrator of such Mortgage
Loan until the Special Servicer has commenced the servicing of such Mortgage
Loan, which will commence upon receipt by the Special Servicer of the Mortgage
File. The Trustee shall deliver to the Paying Agent, the Underwriters, the
Initial Purchasers and to each Holder of a Class E, Class F, Class G, Class H
and Class I Certificate a copy of the notice of such Servicing Transfer Event
provided by the Servicer to the Special Servicer pursuant to this Section.
Upon determining that a Specially Serviced Mortgage Loan (other than an
REO Loan) has become current and has remained current for three consecutive
Monthly Payments (provided no additional Servicing Transfer Event is foreseeable
in the reasonable judgment of the Special Servicer), and that no other Servicing
Transfer Event is continuing with respect thereto, the Special Servicer shall
promptly give notice thereof, and shall return the related Mortgage File and
Credit File to the Servicer and upon giving such notice, and returning such
Mortgage File and Credit File to the Servicer, the Special Servicer's obligation
to service such Corrected Mortgage Loan shall terminate and the obligations of
the Servicer to fully service and administer such Mortgage Loan shall
recommence.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer will provide to the Trustee originals of documents included within the
definition of "Mortgage File" and "Credit File," as appropriate, for inclusion
in the related Mortgage File (with a copy of each such original to the
Servicer), and provide the Servicer with copies of any additional related
Mortgage Loan information including correspondence with the related Mortgagor.
(c) No later than 3:00 p.m. Central time on the Business Day
immediately following each Determination Date, the Special Servicer shall
deliver to the Servicer and on request to each Rating Agency the CSSA Standard
Information Package (upon which the Servicer and the Trustee may conclusively
rely) describing, on a loan-by-loan and property-by-property basis, (1) the
information described in clause (iv) of Section 4.02(a) with respect to each
Specially Serviced Mortgage Loan and the information described in clause (vii)
and (viii) of Section 4.02(a) with respect to each REO Property, (2) the amount
of all payments, Insurance and Condemnation Proceeds and Liquidation Proceeds
received with respect to each Specially Serviced Mortgage Loan during the
related Due Period, and the amount of all REO Revenues, Insurance and
Condemnation Proceeds and Liquidation Proceeds received by it with respect to
each REO Property during the related Due Period, (3) the amount, purpose and
date of all Servicing Advances made by the Servicer with respect to each
Specially Serviced Mortgage
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Loan and REO Property during the related Due Period, (4) the information
described in clauses (iii), (iv)(C), (iv)(D), (v), (xiii) and (xv) of Section
4.02(a) and (5) such additional information relating to the Specially Serviced
Mortgage Loans and REO Properties as the Servicer reasonably requests to enable
it to produce the CSSA Data Files and CSSA Surveillance Reports and perform its
responsibilities under this Agreement which is in the Special Servicer's
possession or is reasonably obtainable by the Special Servicer.
(d) Notwithstanding the provisions of the preceding clause (c), the
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 in its possession reasonably required by
the Special Servicer to perform its duties under this Agreement.
(e) No later than 30 days after a Servicing Transfer Event for a
Mortgage Loan, the Special Servicer shall deliver to each Rating Agency and the
Servicer a report (the "Asset Status Report") with respect to such Mortgage Loan
and the related Mortgaged Property. Such Asset Status Report shall set forth the
following information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Mortgage Loan
and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standard, that are applicable to the exercise of remedies as aforesaid
and to the enforcement of any related guaranties or other collateral
for the related Mortgage Loan and whether outside legal counsel has
been retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status and
returned to the Servicer for regular servicing or otherwise realized
upon including any proposed actions pursuant to Section 3.09, 3.18 or
3.20;
(v) the Appraised Value of the Mortgaged Property together with
the assumptions used in the calculation thereof; provided, however,
that in the event that the Servicer has obtained an Appraisal with
respect to the related Mortgaged Property within the 12-month period
immediately prior to the Servicing Transfer Event and there has been no
material change to the Mortgaged Property that would affect the
validity of such Appraisal, the Special Servicer may use such prior
Appraisal in determining the Appraised Value of the Mortgaged Property;
and
(vi) such other information as the Special Servicer reasonably
deems relevant in light of the Servicing Standard.
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If within 10 Business Days of receiving an Asset Status Report, the
Directing Certificateholder does not disapprove such Asset Status Report in
writing, the Special Servicer shall implement the recommended action as outlined
in such Asset Status Report; provided, however, that the Special Servicer may
not take any action that is contrary to applicable law or the terms of the
applicable Mortgage Loan documents. If the Directing Certificateholder
disapproves such Asset Status Report, the Special Servicer will revise such
Asset Status Report and deliver to the Directing Certificateholder, the Rating
Agencies and the 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(e)
until the earliest to occur of the following events: (i) the Directing
Certificateholder shall fail to disapprove such revised Asset Status Report in
writing within 10 Business Days of receiving such revised Asset Status Report,
(ii) the Special Servicer makes a determination as described below or (iii) the
60th day after the delivery of the first Asset Status Report. The Special
Servicer may, from time to time, modify any Asset Status Report it has
previously delivered and implement such report, provided that such report shall
have been prepared, reviewed and not rejected pursuant to the terms of this
Section.
Notwithstanding the foregoing, the Special Servicer 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 10-Business Day period (i) if the Special Servicer has
determined that failure to take such action would materially and adversely
affect the interests of the Certificateholders or (ii) if the Special Servicer
and the Directing Certificateholder do not agree upon the action to be taken
within 60 days of the delivery of the first Asset Status Report. The Special
Servicer shall have the authority to meet with the Mortgagor for any Specially
Serviced Mortgage Loan and take action consistent with the Servicing Standard
and the related Asset Status Report.
No direction of the Directing Certificateholder, under this Section
3.21 or otherwise under this Agreement, 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 of the Lower-Tier REMIC and the Upper-Tier REMIC, or (b)
result in the imposition of a "prohibited transaction" or "prohibited
contribution" tax under the REMIC Provisions, or (c) expose the Servicer, the
Special Servicer, the Depositor, either Mortgage Loan Seller, the Trust, the
Trustee, the Fiscal Agent or their officers, directors, employees, agents or
Control Persons to any claim, suit or liability, (d) materially expand the scope
of the Special Servicer's or the Servicer's responsibilities under this
Agreement or cause or direct the Special Servicer to act in a manner contrary to
the Servicing Standard or (e) cause or direct the Servicer to act in a manner
contrary to the Servicing Standard.
(f) Upon receiving notice of (i) the filing of a case under any present
or future federal or state bankruptcy, insolvency or similar law or the
commencing of any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings with respect to a Mortgage Loan or the
related Mortgagor or (ii) the request by a Mortgagor for the amendment or
modification of a Mortgage Loan other than an amendment or modification provided
for in the second paragraph in Sections 3.20(a) or 3.08(f), the Servicer shall
promptly give notice thereof, and shall deliver copies of the related Mortgage
File and Credit File to the Special Servicer and shall use its reasonable best
efforts consistent with the Servicing Standard to provide the Special Servicer
with all information relating to the Mortgage Loan and reasonably requested by
the
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Special Servicer to enable it to negotiate with the related Mortgagor and
prepare for any such proceedings. The Servicer shall use its reasonable best
efforts consistent with the Servicing Standard to comply with the preceding
sentence within 5 Business Days of the occurrence of each such event, and upon
receiving such documents and information, the Special Servicer shall use its
reasonable best efforts consistent with the Servicing Standard to cause the
related Mortgagor to cure any default and/or remedy any such event, work out or
modify the Mortgage Loan consistent with the terms of this Agreement, and/or
prepare for such proceedings. Notwithstanding the foregoing, the occurrence of
any of the above-referenced events shall not in and of itself be considered a
Servicing Transfer Event and, unless a Servicing Transfer Event has occurred
with respect to a related Mortgage Loan, the Servicer shall continue to act as
Servicer and administrator of such Mortgage Loan and no fees shall be payable to
the Special Servicer with respect to such Mortgage Loan other than any related
modification, assumption or extension fees provided for herein.
SECTION 3.22. Sub-Servicing Agreements.
(a) Except for the Sub-Servicing Agreements with respect to certain
Mortgage Loans identified as ML-146, ML-147 and ML-148, neither the Servicer nor
the Special Servicer shall enter into any other Sub-Servicing Agreements to
provide for the performance by a third party of any or all of their respective
obligations under Articles III and IV hereof. Each Sub-Servicing Agreement must:
(i) be consistent with this Agreement in all material respects and require an
Approved Sub-Servicer to comply with all of the applicable conditions of this
Agreement; (ii) provide that if the Servicer, 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 shall thereupon assume all of the
rights and, except to the extent they arose prior to the date of assumption,
obligations of the Servicer, under such agreement, or, alternatively, may act in
accordance with Section 7.02 hereof under the circumstances described therein
(subject to the assumption requirements of Section 3.22(g) hereof); (iii)
provide that the Trustee for the benefit of the Certificateholders shall be a
third party beneficiary under such Sub-Servicing Agreement, but that (except to
the extent the Trustee or its designee assumes the obligations of the Servicer
or Special Servicer, as applicable, thereunder as contemplated by the
immediately preceding clause (ii)) none of the Trust Fund, the Trustee, any
successor Servicer or any Certificateholder shall have any duties under such
Sub-Servicing Agreement or any liabilities arising therefrom; (iv) permit any
purchaser of a Mortgage Loan pursuant to this Agreement to terminate such
Sub-Servicing Agreement with respect to such purchased Mortgage Loan at its
option and without penalty, (v) not permit an Approved Sub-Servicer any direct
rights of indemnification that may be satisfied out of assets of the Trust Fund,
(vi) not permit an Approved Sub-Servicer to amend Mortgage Loans without the
prior consent of the Servicer; and (vii) provide that an Approved Sub-Servicer
cannot foreclose on Mortgaged Property or sell REO Property relating to any such
Mortgage Loans without the prior consent of the Servicer. Any successor
Servicer, shall, upon becoming successor Servicer, be assigned and shall assume
the Sub-Servicing Agreements from the predecessor Servicer (subject to the
assumption requirements of Section 3.22(g) hereof). In addition, each such
Sub-Servicing Agreement entered into by the Servicer may provide that the
obligations of an Approved Sub-Servicer thereunder shall terminate with respect
to any Mortgage Loan serviced thereunder at the time such Mortgage Loan becomes
a Specially Serviced Mortgage Loan. The Servicer shall deliver to the Trustee
copies of all the 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
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to actions taken or to be taken by the Servicer, include actions taken or to be
taken by an Approved Sub-Servicer on behalf of the Servicer to the extent
allowed in the related Sub-Servicing Agreement; and, in connection therewith,
any amounts advanced by such Approved Sub-Servicer retained by the Servicer to
satisfy the obligations of the Servicer hereunder to make Advances shall be
deemed to have been advanced by the Servicer out of its own funds and,
accordingly, such Advances shall be recoverable by such Approved Sub-Servicer in
the same manner and out of the same funds as if such Approved Sub-Servicer were
the Servicer, and, for so long as they are outstanding, such Advances shall
accrue interest in accordance with Section 3.03(d), such interest to be
allocable between the Servicer and such Approved Sub-Servicer pursuant to the
terms of the Sub-Servicing Agreement. For purposes of this Agreement, the
Servicer shall be deemed to have received any payment an Approved Sub-Servicer
receives.
(b) An Approved 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.
(c) As part of its servicing activities hereunder, the 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 an Approved Sub-Servicer under each of the related
Sub-Servicing Agreements. Such enforcement, including, without limitation, the
legal prosecution of claims, termination of the 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 Servicer would require were it the owner of the Mortgage Loans. The
Servicer shall have the right to remove an Approved Sub-Servicer in accordance
with the terms of each of the Sub-Servicing Agreements.
(d) In the event the Trustee or its designee becomes successor Servicer
and assumes the rights and obligations of the Servicer under the Sub-Servicing
Agreements, the Servicer, at its expense, shall deliver to the assuming party
all documents and records relating to each Sub-Servicing Agreement and the
Mortgage Loans then being serviced thereunder and an accounting of amounts
collected and held on behalf of it thereunder, and otherwise use reasonable best
efforts consistent with the Servicing Standard to effect the orderly and
efficient transfer of the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding the provisions of any Sub-Servicing Agreement or
agreement described in subparagraph (i) below, the Servicer represents and
warrants that it shall remain obligated and liable to the Trustee and the
Certificateholders for the performance of its obligations and duties under this
Agreement in accordance with the provisions hereof to the same extent and under
the same terms and conditions as if it alone were servicing and administering
the Mortgage Loans for which it is responsible, and the Servicer shall pay the
respective fees of any Approved Sub-Servicer from its own funds in accordance
with the related Sub-Servicing Agreements. In no event shall the Trust Fund bear
any termination fee (if any) required to be paid pursuant to the terms of a
Sub-Servicing Agreement to an Approved Sub-Servicer as a result of an Approved
Sub-Servicer's termination under any Sub-Servicing Agreement. In addition, the
Servicer shall indemnify the Trustee and the Trust Fund against any loss, damage
or liability arising by reason of willful misfeasance, bad faith or negligence
in the performance of duties by an Approved Sub-Servicer or by reason of
negligent disregard by an Approved Sub-Servicer of obligations and duties under
this Agreement and any Sub-Servicing Agreement; provided, however, that the
Servicer and the Special Servicer, as applicable, shall not be required
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to indemnify the Trust for any Sub-Servicer that the Servicer or the Special
Servicer, as the case may be, has not itself selected for appointment.
(f) The Trustee shall furnish to an Approved Sub-Servicer any powers of
attorney and other documents prepared by the Servicer and delivered to the
Trustee and necessary or appropriate to enable such Approved Sub-Servicer to
carry out its servicing and administrative duties under any Sub-Servicing
Agreement; provided, however, that the Trustee shall not be held liable for any
negligence, and shall be indemnified by such Approved Sub-Servicer, with respect
to, or misuse of, any such power of attorney by such Approved Sub-Servicer.
(g) Each Sub-Servicing Agreement shall provide that, in the event the
Trustee or any other Person becomes successor Servicer, the Trustee or such
successor Servicer shall have the right to terminate such Sub-Servicing
Agreement without a fee.
(h) The Special Servicer shall comply with the terms of each
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. With respect to Mortgage Loans subject to a Sub-Servicing Agreement,
the Special Servicer shall, among other things, remit amounts, deliver reports
and information, and afford access to facilities and information to an Approved
Sub-Servicer that would be required to be remitted, delivered or afforded, as
the case may be, to the Servicer pursuant to the terms hereof within a
sufficient period of time to allow such Approved Sub-Servicer to fulfill its
obligations under the applicable Sub-Servicing Agreement and in no event later
than one Business Day prior to the applicable Determination Date (or such other
date as specified herein).
(i) Notwithstanding anything to the contrary contained herein, to the
extent consistent with the Servicing Standard, the Servicer or Special Servicer
may retain qualified third parties to perform ministerial functions, including
tax monitoring, reconvenyances, inspections and similar functions without
requiring such party to execute a Sub-Servicing Agreement; provided, however,
that notwithstanding any such appointment and any other provision herein to the
contrary, the Servicer or Special Servicer, as appropriate, will remain liable
for the performance of such functions hereunder.
SECTION 3.23. Representations and Warranties of the Servicer.
(a) The Servicer 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 and the Fiscal Agent, as of the Closing Date, that:
(i) The Servicer is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and the 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 Servicer,
and the performance and compliance with the terms of this Agreement by
the Servicer, will not violate the Servicer's formation documents as
amended and restated, and by-laws or constitute a default (or an event
which, with notice or
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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, or result
in the violation of any law, rule, regulation, order, judgment or
decree to which the Servicer or its property is subject;
(iii) The 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 the Trustee and the Depositor, constitutes a valid, legal
and binding obligation of the Servicer, enforceable against the
Servicer in accordance with the terms hereof, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and general
principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(v) The Servicer is not in default with respect to any law, 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 Servicer or its
properties or might have consequences that would materially and
adversely affect its ability to perform its duties and obligations
hereunder;
(vi) No litigation is pending or, to the best of the Servicer's
knowledge, threatened against the Servicer which would prohibit the
Servicer from entering into this Agreement or, in the Servicer's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Servicer to perform its obligations
under this Agreement or the financial condition of the Servicer;
(vii) The Servicer will examine each Sub-Servicing Agreement and
will be familiar with the terms thereof. Any Sub-Servicing Agreements
will comply with the provisions of Section 3.22;
(viii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Servicer, or compliance by the Servicer with,
this Agreement or the consummation of the transactions contemplated by
this Agreement, except for any consent, approval, authorization or
order which has not been obtained or cannot be obtained prior to the
actual performance by the Servicer of its obligations under this
Agreement, and which, if not obtained would not have a materially
adverse effect on the ability of the Servicer to perform its
obligations hereunder; and
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(ix) The Servicer hereby covenants with respect to those computer
systems identified as mission-critical for the performance of its
servicing functions described by this Agreement, that it is committed
to modifying its respective existing systems to the extent required to
cause them, when used for the purpose for which they were intended, to
be capable of accurately processing, proving and receiving date data
from, into and between the twentieth and twenty-first centuries, and to
correctly, create, store, process and output information related to or
including dates on or after December 31, 1999 as a result of the
changing of the date from 1999 to 2000, including leap year
calculations, assuming that all other products, including hardware and
software, when used in combination with the product or service in
question, properly exchange date data.
(b) The representations and warranties set forth in paragraph (a) above
shall survive the execution and delivery of the Agreement and shall survive for
as long as any Class of Certificates is outstanding. The Servicer shall
indemnify the Trustee, the Fiscal Agent, their respective officers, directors,
employees, agents and Control Persons and the Trust Fund and hold each of them
harmless against any losses, damages, penalties, fines, forfeitures, and legal
fees and related costs, judgments, and other costs and expenses resulting from
any claim, demand, defense or assertion arising from, or resulting from a
material breach of the Servicer's representations and warranties contained in
paragraph (a) above. Such indemnification shall survive any termination or
resignation of the Servicer, any termination or resignation of the Trustee or
the Fiscal Agent and any termination of the Agreement.
SECTION 3.24. Representations and Warranties of the Special Servicer.
(a) The Special Servicer hereby represents and warrants to the Trustee,
for its own benefit and the benefit of the Certificateholders, and to the
Depositor, the Servicer and the Fiscal Agent, as of the Closing Date, that:
(i) The Special Servicer is a limited liability company duly
organized, 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 formation documents, as amended and restated, and by-laws or
constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of,
any material agreement or other instrument to which it is a party or
which is applicable to it or any of its assets, or result in the
violation of any law, rule, regulation, order, judgment or decree which
the Special Servicer or its property is subject;
(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;
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(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Special Servicer, enforceable
against the Special Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at
law;
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with
the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Special Servicer's good
faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Special Servicer to perform its
obligations under this Agreement or the financial condition of the
Special Servicer;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which
would prohibit the Special Servicer from entering into this Agreement
or, in the Special Servicer's good faith and reasonable judgment is
likely to materially and adversely affect either the ability of the
Special Servicer to perform its obligations under this Agreement or the
financial condition of the Special Servicer;
(vii) Each officer, director or employee of the Special Servicer
that has or, following the occurrence of a Servicing Transfer Event,
would have 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). Neither the
Special Servicer nor any of its officers, directors or employees that
is or, following the occurrence of a Servicing Transfer Event, would be
involved in the servicing or administration of Mortgage Loans has been
refused such coverage or insurance;
(viii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Special Servicer, or compliance by the Special
Servicer with, this Agreement or the consummation of the transactions
contemplated by this Agreement, except for any consent, approval,
authorization or order which has not been obtained or cannot be
obtained prior to the actual performance by the Special Servicer of its
obligations under this Agreement, and which, if not obtained would not
have a materially adverse effect on the ability of the Special Servicer
to perform its obligations hereunder; and
(ix) The Special Servicer hereby covenants with respect to those
computer systems identified as mission-critical for the performance of
its servicing functions described by this Agreement, that it is
committed to modifying its respective existing systems to the extent
required to cause them, when used for the purpose for which they were
intended, to be capable of accurately processing, proving and receiving
date data from, into and between the
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twentieth and twenty-first centuries, and to correctly, create, store,
process and output information related to or including dates on or
after December 31, 1999 as a result of the changing of the date from
1999 to 2000, including leap year calculations, assuming that all other
products, including hardware and software, when used in combination
with the product or service in question, properly exchange date data.
(b) The representations and warranties set forth in paragraph (a) above
shall survive the execution and delivery of the Agreement and shall survive for
so long as any Class of Certificates is outstanding. The Special Servicer shall
indemnify the Trustee, the Fiscal Agent, their respective officers, directors,
employees, agents and Control Persons and the Trust Fund and hold them harmless
against any losses, damages, penalties, fines, forfeitures, legal fees and
related costs, judgments and other costs and expenses resulting from any claim,
demand, defense or assertion based on or grounded upon, or resulting from a
material breach of the Special Servicer's representations and warranties
contained in paragraph (a) above. Such indemnification shall survive any
termination or resignation of the Special Servicer, any termination or
resignation of the Trustee or the Fiscal Agent and any termination of the
Agreement.
SECTION 3.25. Interest Reserve Account.
(a) The Trustee shall establish and maintain, or cause to be
established and maintained the Interest Reserve Account as an Eligible Account,
for the benefit of the Certificateholders.
(b) On each Servicer Remittance Date relating to any Interest Accrual
Period ending in any January and on any Servicer Remittance Date which occurs in
a year which is not a leap year relating to any Interest Accrual Period ending
in any December, the Servicer shall remit to the Trustee, in respect of the
Interest Reserve Loans for deposit into the Interest Reserve Account (to the
extent it receives such amounts from the Servicer), an amount equal to one day's
interest on the Stated Principal Balance of the Interest Reserve Loans as of the
Distribution Date occurring in the month preceding the month in which such
Servicer Remittance Date occurs at the related Mortgage Rate, to the extent a
full Monthly Payment or P&I Advance is made in respect thereof (all amounts so
deposited in any consecutive February and January (if applicable), "Withheld
Amounts").
(c) On each Servicer Remittance Date occurring in March, the Trustee
shall withdraw from the Interest Reserve Account an amount equal to the Withheld
Amounts from the preceding January, if any, and February, if any, and shall
remit such amount into the Lower-Tier Distribution Account. Funds held in the
Interest Reserve Account will be held uninvested.
SECTION 3.26. Action Upon Receipt of Notice of Residual Value Policy
Termination Event or Lease Enhancement Policy Termination Event.
Upon receipt of notice of a Residual Value Policy Termination Event or
Lease Enhancement Policy Termination Event, and subject to Section 4.03(e)
hereof, the Servicer shall take the following actions, or refrain from taking
the following actions, as appropriate:
(i) Maintain a record of all subsequent payments by the related
Lease Enhancement Insurer or Residual Value Insurer (the aggregate
amount already
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paid at such time, together with all subsequent payments made from time
to time thereafter, under the Lease Enhancement Policy or Residual
Value Policy, the "Lease Enhancement Policy Exposure" or the "Residual
Value Policy Exposure");
(ii) Deposit all payments made under the related Lease Enhancement
Policy or Residual Value Policy into the Policy Escrow Account until
the date on which ultimate responsibility (as between the Trust Fund
and the Lease Enhancement Insurer or Residual Value Insurer) for
payments with respect to such Lease Enhancement Policy Termination
Event or Residual Value Policy Termination Event is finally resolved.
Amounts deposited in the Policy Escrow Account shall be invested in
Permitted Investments selected by the Servicer subject to Section 3.06;
(iii) Continue to make P&I Advances until a determination of
nonrecoverability is made in accordance with Section 4.03(e)(iii);
(iv) If any payment (or portion thereof) made by any Lease
Enhancement Policy Insurer or Residual Value Insurer is subsequently
determined, in accordance with the dispute resolution procedures set
forth in the related Lease Enhancement Policy or Residual Value Policy
or pursuant to any legal process or settlement by the Special Servicer
of any claim by such Lease Enhancement Policy Insurer or Residual Value
Insurer, to be reimbursable to such Lease Enhancement Policy Insurer or
Residual Value Insurer, the Servicer shall, as required, (a) remit to
such issuer the amount on deposit in the Policy Escrow Account (up to
the amount owed to the issuer), (b) make a P&I Advance of any remaining
amount owed to the issuer and (c) promptly pay the amount of such P&I
Advance to such issuer under the Lease Enhancement Policy or Residual
Value Policy with respect to such Lease Enhancement Policy Termination
Event or Residual Value Policy Termination Event. If such P&I Advance
is determined to be a Nonrecoverable P&I Advance, the Servicer shall
nevertheless make such P&I Advance to the related Lease Enhancement
Policy Insurer or Residual Value Insurer to reimburse it for amounts
paid out under the Lease Enhancement Policy or Residual Value Policy as
provided above, but the Servicer shall be entitled to immediately
reimburse itself from general funds available in the Certificate
Account for such P&I Advance and related interest at the Reimbursement
Rate as a Trust Fund expense. If such P&I Advance is not determined to
be a Nonrecoverable P&I Advance, the Servicer shall be repaid therefor
and for the related interest at the Reimbursement Rate out of the
proceeds of the related Mortgage Loan.
(v) If any payment (or portion thereof) made by such Lease
Enhancement Insurer or Residual Value Insurer and deposited into the
Policy Escrow Account is subsequently determined to have been properly
payable to the Trust Fund, then the Servicer shall deposit into the
Certificate Account the amount on deposit in the Policy Escrow Account
(net of any unpaid P&I Advance (and accrued interest thereon) and of
any interest and investment income realized on funds on deposit therein
that, pursuant to Section 3.06(a), is to be applied to pay interest on
Advances made with respect to, or other expenses of the Trust
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Fund allocable to, the related CTL Loan), together with any payments in
the nature of damages relating to non-payment under such Lease
Enhancement Policy or Residual Value Policy, as recoveries with respect
to such Mortgage Loan.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Servicer Remittance Date, to the extent of the Available
Distribution Amount for such Distribution Date withdrawn from the Certificate
Account pursuant to Section 3.04(c), the Servicer shall transfer to the
Lower-Tier Distribution Account, and on each Distribution Date, the Trustee
shall transfer (A) the Lower-Tier Distribution Amount from the Lower-Tier
Distribution Account to the Upper-Tier Distribution Account in the amounts and
priorities set forth in Section 4.01(b) with respect to each class of
Uncertificated Lower-Tier Interests and (B) the Excess Interest on deposit in
the Excess Interest Account to the Upper-Tier Distribution Account in the
priority set forth in Section 4.01(g), and immediately thereafter, shall make
distributions thereof from the Upper-Tier Distribution Account in the following
order of priority, satisfying in full, to the extent required and possible, each
priority before making any distribution with respect to any succeeding priority:
(i) first, to the Holders of the Class A-1 Certificates, the Class
A-2 Certificates and the Class X Certificates, pro rata (based upon
their respective entitlements to interest for such Distribution Date),
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Classes of Certificates for such
Distribution Date;
(ii) second, (A) to the Holders of the Class A-1 Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount, until the outstanding Certificate
Balance of such Class has been reduced to zero and (B) after the
Certificate Balance of the Class A-1 Certificates has been reduced to
zero, to the Holders of the Class A-2 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A-1 Certificates on such
Distribution Date), until the outstanding Certificate Balance of such
Class has been reduced to zero;
(iii) third, to the Holders of the Class A-1 Certificates and the
Class A-2 Certificates, pro rata (based upon the aggregate unreimbursed
Collateral Support Deficit allocated to each such Class), until all
amounts of Collateral Support Deficit previously allocated to such
Classes, but not previously reimbursed, have been reimbursed in full;
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(iv) fourth, to the Holders of the Class B Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(v) fifth, after the Certificate Balances of the Class A-1 and
Class A-2 Certificates have been reduced to zero, to the Holders of the
Class B Certificates, in reduction of the Certificate Balance thereof,
an amount equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the Class A
Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class B Certificates has been reduced to
zero;
(vi) sixth, to the Holders of the Class B Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class
B Certificates, but not previously reimbursed, have been reimbursed in
full;
(vii) seventh, to the Holders of the Class C Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(viii) eighth, after the Certificate Balances of the Class A-1,
Class A-2 and Class B Certificates have been reduced to zero, to the
Holders of the Class C Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount
(or the portion thereof remaining after any distributions in respect of
the Class A and Class B Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class C Certificates has
been reduced to zero;
(ix) ninth, to the Holders of the Class C Certificates, until all
amounts of Collateral Support Deficit previously allocated to the Class
C Certificates, but not previously reimbursed, have been reimbursed in
full;
(x) tenth, to the Holders of the Class D Certificates, in respect
of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xi) eleventh, after the Certificate Balances of the Class A-1,
Class A-2, Class B and Class C Certificates have been reduced to zero,
to the Holders of the Class D Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A, Class B and Class C
Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class D Certificates has been reduced to
zero;
(xii) twelfth, to the Holders of the Class D Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class D Certificates, but not previously reimbursed, have been
reimbursed in full;
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(xiii) thirteenth, to the Holders of the Class E Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xiv) fourteenth, after the Certificate Balances of the Class A-1,
Class A-2, Class B, Class C and Class D Certificates have been reduced
to zero, to the Holders of the Class E Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class A, Class B, Class C and Class D
Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class E Certificates has been reduced to
zero;
(xv) fifteenth, to the Holders of the Class E Certificates, until
all amounts of Collateral Support Deficit previously allocated to the
Class E Certificates, but not previously reimbursed, have been
reimbursed in full;
(xvi) sixteenth, to the Holders of the Class F Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xvii) seventeenth, after the Certificate Balances of the Class
A-1, Class A-2, Class B, Class C, Class D and Class E Certificates have
been reduced to zero, to the Holders of the Class F Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof remaining after
any distributions in respect of the Class A, Class B. Class C, Class D
and Class E Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class F Certificates has been
reduced to zero;
(xviii) eighteenth, to the Holders of the Class F Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class F Certificates, but not previously reimbursed, have been
reimbursed in full;
(xix) nineteenth, to the Holders of the Class G Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xx) twentieth, after the Certificate Balances of the Class A-1,
Class A-2, Class B, Class C, Class D, Class E and Class F Certificates
have been reduced to zero, to the Holders of the Class G Certificates,
in reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof remaining after
any distributions in respect of the Class A, Class B, Class C, Class D,
Class E and Class F Certificates on such Distribution Date), until the
outstanding Certificate Balance of the Class G Certificates has been
reduced to zero;
(xxi) twenty-first, to the Holders of the Class G Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class G Certificates, but not previously reimbursed, have been
reimbursed in full;
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(xxii) twenty-second, to the Holders of the Class H Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxiii) twenty-third, after the Certificate Balances of the Class
A-1, Class A-2, Class B, Class C, Class D, Class E, Class F and Class G
Certificates have been reduced to zero, to the Holders of the Class H
Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the Class A,
Class B, Class C, Class D, Class E, Class F and Class G Certificates on
such Distribution Date), until the outstanding Certificate Balance of
the Class H Certificates has been reduced to zero;
(xxiv) twenty-fourth, to the Holders of the Class H Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class H Certificates, but not previously reimbursed, have been
reimbursed in full;
(xxv) twenty-fifth, to the Holders of the Class I Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxvi) twenty-sixth, after the Certificate Balances of the Class
A-1, Class A-2, Class B, Class C, Class D, Class E, Class F, Class G
and Class H Certificates have been reduced to zero, to the Holders of
the Class I Certificates, in reduction of the Certificate Balance
thereof, an amount equal to the Principal Distribution Amount (or the
portion thereof remaining after any distributions in respect of the
Class A, Class B, Class C, Class D, Class E, Class F, Class G and Class
H Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class I Certificates has been reduced to
zero;
(xxvii) twenty-seventh, to the Holders of the Class I
Certificates, until all amounts of Collateral Support Deficit
previously allocated to the Class I Certificates, but not previously
reimbursed, have been reimbursed in full; and
(xxviii) twenty-eighth, to the Holders of the Class R
Certificates, the amount, if any, of the Available Distribution Amount
remaining in the Upper-Tier Distribution Account with respect to such
Distribution Date.
(b) On each Distribution Date, each Uncertificated Lower-Tier Interest
shall receive distributions in respect of principal or reimbursement of
Collateral Support Deficit in an amount equal to the amount of principal or
reimbursement of Collateral Support Deficit actually distributable to its
respective Related Certificates as provided in Sections 4.01(a) and (c).
On each Distribution Date, each Uncertificated Lower-Tier Interest
shall receive distributions of interest as follows:
(A) the Class LA-1 Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class A-1
Certificates and (ii) an amount
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equal to the product of the Class LA-1 Interest Fraction and the
amount of interest distributable on the Class X Certificates;
(B) the Class LA-2 Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class A-2
Certificates and (ii) an amount equal to the product of the Class LA-2
Interest Fraction and the amount of interest distributable on the Class
X Certificates;
(C) the Class LB Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class B
Certificates and (ii) an amount equal to the product of the Class LB
Interest Fraction and the amount of interest distributable on the Class
X Certificates;
(D) the Class LC Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class C
Certificates and (ii) an amount equal to the product of the Class LC
Interest Fraction and the amount of interest distributable on the Class
X Certificates;
(E) the Class LD Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class D
Certificates and (ii) an amount equal to the product of the Class LD
Interest Fraction and the amount of interest distributable on the Class
X Certificates;
(F) the Class LE Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class E
Certificates and (ii) an amount equal to the product of the Class LE
Interest Fraction and the amount of interest distributable on the Class
X Certificates;
(G) the Class LF Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class F
Certificates and (ii) an amount equal to the product of the Class LF
Interest Fraction and the amount of interest distributable on the Class
X Certificates;
(H) the Class LG Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class G
Certificates and (ii) an amount equal to the product of the Class LG
Interest Fraction and the amount of interest distributable on the Class
X Certificates;
(I) the Class LH Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class H
Certificates and (ii) an amount
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equal to the product of the Class LH Interest Fraction and the
amount of interest distributable on the Class X Certificates, and
(J) the Class LI Uncertificated Interest shall receive
distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest actually distributable on the Class I
Certificates and (ii) an amount equal to the product of the Class LI
Interest Fraction and the amount of interest distributable on the Class
X Certificates.
Such amounts distributed to the Uncertificated Lower-Tier Interests in respect
of principal and interest with respect to any Distribution Date are referred to
herein collectively as the "Lower-Tier Distribution Amount," and shall be made
by the Trustee by depositing such Lower-Tier Distribution Amount in the
Upper-Tier Distribution Account.
On each Distribution Date, each Uncertificated Lower-Tier Interest
shall receive distributions in respect of Yield Maintenance Charges and
Prepayment Premiums in the same manner as that which is described in the
preceding paragraph with respect to interest.
As of any date, the principal balance of each Uncertificated Lower-Tier
Interest equals the Certificate Balance of the Related Certificates with respect
thereto. The initial principal balance of each Uncertificated Lower-Tier
Interest equals the respective Original Lower-Tier Principal Amount. The
pass-through rate with respect to each Uncertificated Lower-Tier Interest will
be the rate per annum set forth in the Preliminary Statement hereto.
Any amount that remains in the Lower-Tier Distribution Account on each
Distribution Date after distribution of the Lower-Tier Distribution Amount shall
be distributed to the Holders of the Class LR Certificates (but only to the
extent of the Available Distribution Amount for such Distribution Date remaining
in the Lower-Tier Distribution Account, if any).
(c) Notwithstanding anything to the contrary in this Agreement, on each
Distribution Date on and after the Senior Principal Distribution Cross-Over
Date, and in any event on the final Distribution Date in connection with the
termination of the Trust Fund, distributions of principal on the Class A-1
Certificates and the Class A-2 Certificates will be paid to holders of such two
Classes of Certificates, pro rata in accordance with their respective
Certificate Balances outstanding immediately prior to such Distribution Date,
until the Certificate Balance of each such Class of Certificates is reduced to
zero without regard to the priorities set forth in Section 4.01(a)(ii).
(d) On each Distribution Date, the Trustee shall withdraw from the
Lower-Tier Distribution Account, and shall deposit into the Upper-Tier
Distribution Account in respect of each Uncertificated Lower-Tier Interest,
distributions from amounts on deposit in the Lower-Tier Distribution Account in
respect of Yield Maintenance Charges and Prepayment Premiums, if any,
distributable to its Related Certificate or the Class X Certificate.
(e) (i) On each Distribution Date, until the Certificate Balances of
the Class A-1, Class A-2, Class B, Class C, Class D and Class E Certificates
have each been reduced to zero, the Paying Agent shall withdraw any amounts on
deposit in the Upper Tier Distribution Account that represent Prepayment
Premiums actually collected on Mortgage Loans or REO Loans during the related
Due Period and remitted in respect of the Uncertificated Lower-Tier Interests
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pursuant to Section 4.01(d), and shall distribute to each of the Class A, Class
B, Class C, Class D and Class E Certificates, for each such Class an amount
equal to the product of (a) a fraction, the numerator of which is the amount of
principal distributed with respect to such Class pursuant to Section 4.01(a) on
such Distribution Date, and the denominator of which is the total amount of
principal distributed to all Classes of Certificates pursuant to Section 4.01(a)
on such Distribution Date, (b) 25% and (c) the total amount of Prepayment
Premiums collected during the related Due Period. Any Prepayment Premiums
received during the related Due Period with respect to such Mortgage Loans or
REO Loans and remitted pursuant to Section 4.01(d), remaining after such
distributions shall be distributed on the Class X Certificates.
(ii) On each Distribution Date, until the Certificate Balances of the
Class A-1, Class A-2, Class B, Class C, Class D and Class E Certificates have
each been reduced to zero, the Trustee shall withdraw any amounts on deposit in
the Upper-Tier Distribution Account that represent Yield Maintenance Charges
actually collected on Mortgage Loans or REO Loans during the related Due Period
and remitted in respect of the Uncertificated Lower-Tier Interests pursuant to
Section 4.01(d), and shall distribute to each of the Class A-1, Class A-2, Class
B, Class C, Class D and Class E Certificates, for each such Class an amount
equal to the product of (a) a fraction, the numerator of which is the amount of
principal distributed with respect to such Class pursuant to Section 4.01(a) on
such Distribution Date, and the denominator of which is the total amount of
principal distributed to all Classes of Certificates pursuant to Section 4.01(a)
on such Distribution Date, (b) the Base Interest Fraction for the related
principal prepayment and such Class of Certificates and (c) the aggregate amount
of Yield Maintenance Charges collected on such principal prepayment during the
related Due Period. Any Yield Maintenance Charges received during the related
Due Period with respect to such Mortgage Loans and remitted pursuant to Section
4.01(d) remaining after such distributions shall be distributed on the Class X
Certificates.
(f) Following the reduction of the Certificate Balances of the Class
A-1, Class A-2, Class B, Class C, Class D and Class E Certificates to zero, the
Trustee shall distribute 100% of any Prepayment Premiums and Yield Maintenance
Charges actually received during the related Due Period with respect to such
Mortgage Loans and remitted in respect of all Uncertificated Lower-Tier
Interests pursuant to Section 4.01(d), to the Class X Certificates.
(g) On any applicable Distribution Date, any Excess Interest received
in respect of the Mortgage Loans in the related Due Period and remitted by the
Servicer to the Trustee for deposit in the Excess Interest Distribution Account
shall be distributed from the Excess Interest Distribution Account to the
Upper-Tier Distribution Account for distribution to the Class R
Certificateholders; provided, however, that, such amounts shall be applied to
make up any interest shortfalls (for such Distribution Date and any preceding
Distribution Dates) on, and reimburse any Collateral Support Deficits previously
allocated to, any class of Regular Certificates.
(h) 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 specifically provided in Sections 4.01(g), 4.01(h) and 9.01, 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
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therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than 5 Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent Distribution Dates), or otherwise by check mailed to the address
of such Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of Collateral Support Deficit previously allocated to such
Certificate) will be made in 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.
Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a "brokerage firm" or "indirect participating firm") for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the Paying
Agent, the Certificate Registrar, the Depositor, the Servicer, the Special
Servicer, the Underwriters, the Initial Purchasers or the Fiscal Agent shall
have any responsibility therefor except as otherwise provided by this Agreement
or applicable law.
(i) Except as otherwise provided in Section 9.01, whenever the Trustee
expects that the final distribution with respect to any Class of Certificates
(determined without regard to any possible future reimbursement of any amount of
Collateral Support Deficit previously allocated to such Class of Certificates)
will be made on the next Distribution Date, the Trustee shall, no later than the
related P&I Advance Determination Date, mail to each Holder on such date of such
Class of Certificates a notice to the effect that:
(i) the Trustee expects that the final distribution with respect
to such Class of Certificates will be made on such Distribution Date
but only upon presentation and surrender of such Certificates at the
offices of the Certificate Registrar or such other location therein
specified; and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of
such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(i) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the
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non-tendering Certificateholders shall be paid out of such funds. No interest
shall accrue or be payable to any Certificateholder on any amount held in trust
hereunder by the Trustee or the Paying Agent as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(i).
(j) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the Regular Certificates shall be made in the amounts
and manner specified in Section 4.01(a) to the Holders of the respective Class
otherwise entitled to distributions of interest and principal on such Class on
the relevant Distribution Date; provided, however, that all distributions in
reimbursement of Collateral Support Deficit previously allocated to a Class of
Certificates which has since been retired shall be to the prior Holders that
surrendered the Certificates of such Class upon retirement thereof and shall be
made by check mailed to the address of each such prior Holder last shown in the
Certificate Register. Notice of any such distribution to a prior Holder shall be
made in accordance with Section 11.05 at such last address. The amount of the
distribution to each such prior Holder shall be based upon the aggregate
Percentage Interest evidenced by the Certificates surrendered thereby. If the
check mailed to any such prior Holder is returned uncashed, then the amount
thereof shall be set aside and held uninvested in trust for the benefit of such
prior Holder, and the Trustee shall attempt to contact such prior Holder in the
manner contemplated by Section 4.01(h) as if such Holder had failed to surrender
its Certificates.
(k) On each Distribution Date, the Servicer shall pay to the owner of
the Excess Fixed Yield an amount equal to the Excess Fixed Yield.
SECTION 4.02. Statements to Certificateholders; CSSA Standard
Information Package.
(a) On or before each Distribution Date, the Trustee shall prepare a
statement (substantially in the form set forth as Exhibit H hereto) based solely
on information provided to it by the Servicer (with respect to which the Trustee
has no obligation to verify) as to the distributions made on such Distribution
Date (each, a "Distribution Date Statement") setting forth:
(i) the amount of distributions, if any, made on such Distribution
Date to the holders of each Class of Certificates in reduction of the
Certificate Balance thereof;
(ii) the amount of distributions, if any, made on such
Distribution Date to the holders of such Class of Certificates
allocable to (A) Distributable Certificate Interest and (B) Yield
Maintenance Charges and/or Prepayment Premiums;
(iii) the number and the aggregate unpaid principal balance of the
Mortgage Loans at the close of business on the related Determination
Date;
(iv) the number and the aggregate unpaid principal balance of the
Mortgage Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days,
(C) delinquent 90 days or more, (D) that are Specially Serviced
Mortgage Loans that
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are not delinquent or (E) as to which foreclosure proceedings have been
commenced.
(v) with respect to any Mortgage Loans as to which the related
Mortgaged Property became an REO Property during the preceding Due
Period, the Stated Principal Balance and the unpaid principal balance
of such Mortgage Loan as of the date on which such Mortgaged Property
became an REO Property;
(vi) as to any Mortgage Loan repurchased by a Mortgage Loan Seller
or otherwise liquidated or disposed of during the related Due Period
(or that were prepaid during the Related Due Period), the loan number
thereof and the amount of proceeds of any repurchase of a Mortgage
Loan, Liquidation Proceeds and/or other amounts, if any, received
thereon during the related Due Period and the portion thereof included
in the Available Distribution Amount for such Distribution Date;
(vii) with respect to any REO Property included in the Trust Fund
as of the end of the related Due Period, the loan number of the related
Mortgage Loan, the value of such REO Property based on the most recent
Appraisal or valuation and the amount of any other income collected
with respect to any REO Property net of related expenses and other
amounts, if any, received on such REO Property during the related Due
Period and the portion thereof included in the Available Distribution
Amount for such Distribution Date;
(viii) with respect to any REO Property sold or otherwise disposed
of during the related Due Period, (A) the loan number of the related
Mortgage Loan and the amount of sale proceeds and other amounts, if
any, received in respect of such REO Property sold or otherwise
disposed of during the related Due Period and the portion thereof
included in the Available Distribution Amount and (B) the date of the
related determination by the Special Servicer that it has recovered all
payments which it expects to be fully recoverable;
(ix) the aggregate Certificate Balance or Notional Amount of each
Class of Certificates before and after giving effect to the
distributions made on such Distribution Date, separately identifying
any reduction in the aggregate Certificate Balance of each such Class
due to Collateral Support Deficits and any increase in the aggregate
Certificate Balance due to allocation of Certificate Deferred Interest;
(x) the aggregate amount of Unscheduled Principal Distribution
Amount received during the related Due Period;
(xi) the Pass-Through Rate for such Class of Certificates for such
Distribution Date and for the next Distribution Date;
(xii) (a) the aggregate amount of the Servicing Fee and the Excess
Fixed Yield and (b) the Special Servicing Fee, Workout Fee, Liquidation
Fee and any other servicing or special servicing compensation retained
by or paid to the Servicer or the Special Servicer for the related Due
Period;
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(xiii) the amount of Collateral Support Deficit, if any, incurred
with respect to such Distribution Date and in the aggregate incurred
with respect to all Distribution Dates (except to the extent reimbursed
or paid);
(xiv) the aggregate amount of Servicing Advances and P&I Advances
outstanding which have been made by the Servicer, the Special Servicer,
the Trustee and the Fiscal Agent and the amounts of interest accrued
thereon;
(xv) the amount of any Appraisal Reduction allocable to the
related Due Period on a loan-by-loan basis and the total Appraisal
Reduction Amount as of such Distribution Date;
(xvi) a listing of all Mortgage Loans that have been defeased from
issuance until the related Distribution Date, with the respective dates
of defeasance;
(xvii) all deposits and withdrawals from the Interest Reserve
Account on the Servicer Remittance Date immediately preceding such
Distribution Date;
(xviii) the aggregate amount of all Class Unpaid Interest
Shortfalls for each Class; and
(xix) the total amount of Prepayment Interest Shortfalls and the
amount of Prepayment Interest Shortfalls allocated to each Class that
are not offset by the aggregate amount of the portion of the Servicing
Fee that represents compensation of the Servicer and the Excess Fixed
Yield.
In the case of information furnished pursuant to clauses (i), (ii) and (ix)
above, the amounts shall be expressed as a dollar amount in the aggregate for
all Certificates of each applicable Class and per Definitive Certificate.
On or before each Distribution Date, the Trustee shall prepare a report
in tabular form (the "Collateral Tabulation Report") containing information
regarding the Mortgage Loans as of the end of the related Due Period setting
forth substantially the categories of information regarding the Mortgage Loans
set forth in the charts and tables contained in the Prospectus (calculated,
where applicable, on the basis of the most recent relevant information provided
by the borrowers to the Servicer or the Special Servicer and by the Servicer or
the Special Servicer, as the case may be, to the Trustee).
Commencing in August, 1999, the Servicer shall (a) furnish to the
Trustee, (b) make available via its internet website and (c) deliver in hard
copy form, upon request, to the Rating Agencies, the Depositor and the Financial
Market Publishers prior to each Distribution Date, and the Trustee shall make
available to each Certificateholder, each Underwriter, each Initial Purchaser
and, if requested, any potential investor in the Certificates, on each
Distribution Date, the CSSA Data Files and the CSSA Surveillance Reports.
Annually, commencing on or before October 30, 1999 and thereafter annually by
June 30 of each year, with respect to each Mortgaged Property and REO Property,
the Servicer shall deliver to the Trustee and the Special Servicer the CSSA
Operating Information in a manner consistent with Section 3.12.
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On each Distribution Date, the Trustee shall forward by mail and/or
make available via its internet site or electronic bulletin board, the
Distribution Date Statement and the Collateral Tabulation Report to all Holders
of each Class of Certificates, the Underwriters, each Rating Agency, the
Depositor, the Initial Purchasers, potential investors, the Servicer, the
Special Servicer and the Fiscal Agent. In addition, the Trustee shall make the
Distribution Date Statement and the Collateral Tabulation Report available to
certain financial market publishers identified to the Trustee from time to time
via its electronic bulletin board or its internet site located at
http://www.lnbabs.com and shall deliver the Distribution Date Statement and the
Collateral Tabulation Report via e-mail to the Financial Market Publishers.
Within a reasonable period of time after the end of each calendar year,
the Trustee shall furnish to each Person who at any time during the calendar
year was a Holder of a Certificate, a statement containing the information set
forth in clauses (i), (ii) and (xii) above and, to the extent necessary to
fulfill its tax-reporting obligations, as to the applicable Class, aggregated
for such calendar year or applicable portion thereof during which such person
was a Certificateholder, together with such other information as the Trustee
deems necessary or desirable, or that a Certificateholder or Certificate Owner
reasonably requests, to enable Certificateholders to prepare their tax returns
for such calendar year. Such obligation of the Trustee shall be deemed to have
been satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code as from time to
time are in force.
(b) With respect to each Distribution Date commencing on the
Distribution Date occurring in August, 1999, the Servicer shall furnish to the
Trustee, and electronically make available on its website (providing hard copies
upon request) to the Depositor and each Rating Agency an accurate and complete
CSSA Standard Information Package no later than 4:00 p.m. Central time on the
second Business Day after the related Determination Date. The CSSA Standard
Information Package shall be provided by the Servicer to the Trustee in such
formats as the Servicer and the Trustee may agree. The Trustee shall make the
CSSA Standard Information Package supplied by the Servicer available on its
electronic bulletin board and, as soon as capable, its internet site located at
http://www.lnbabs.com. After all of the Certificates have been sold by the
Underwriters, certain information will be made accessible at the website
maintained by the Servicer at www.bomcm.com.
The Trustee shall have no obligation to recompute, verify or
recalculate the information provided thereto by the Servicer in the CSSA
Standard Information Package or otherwise.
(c) As soon as reasonably practicable, upon the written request of any
Certificateholder, the Trustee shall provide the requesting Certificateholder
with such information that is in the Trustee's possession or can reasonably be
obtained by the Trustee as is requested by such Certificateholder, for purposes
of satisfying applicable reporting requirements under Rule 144A under the
Securities Act.
(d) The Trustee shall make available to Persons who have obtained an
account number on the Trustee's ASAP (Automatic Statements Accessed by Phone)
System (or similar system), the reports described above in this Section 4.02 and
a summary report of Certificate Factors via automated facsimile. The Trustee
shall make available, upon request, to Certificateholders, Certificate Owners
identified to the reasonable satisfaction of the Trustee, the
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Depositor, the Initial Purchaser, the Servicer, the Special Servicer and the
Rating Agencies account numbers on the Trustee's ASAP System (or a similar
system). In addition, if the Depositor so directs the Trustee and on terms
acceptable to the Trustee, the Trustee will make available through its
electronic bulletin board system, on a confidential basis, such information
related to the Mortgage Loans as the Depositor may reasonably request. A
directory has been set upon on the bulletin board in which an electronic file is
stored containing monthly servicer data. All files shall be password protected.
Passwords to each file will be released by the Trustee, upon request, to
Certificateholders, Certificate Owners identified to the reasonable satisfaction
of the Trustee, the Depositor, the Initial Purchaser, the Master Servicer, the
Special Servicer and the Rating Agencies. The Trustee also maintains a site on
the internet at www.lnbabs.com at which certain of the above information will be
available.
(e) Based on information provided to it by the Depositor and the
Servicer, the Trustee shall prepare, sign and file, on behalf of the Depositor,
any and all Exchange Act Reports; provided, however, that the Depositor shall
prepare, sign and file with the Commission the initial Form 8-K relating to the
Trust Fund. Each Exchange Act Report consisting of a monthly Distribution Date
Statement, Comparative Financial Status Report, Delinquent Loan Status Report,
Historical Loss Estimate Report, Historical Loan Modification Report, REO Status
Report, NOI Adjustment Worksheet, Operating Statement Analysis Worksheet, Watch
List or report pursuant to Section 4.02(a) shall be prepared as an exhibit or
exhibits to a Form 8-K. Each Exchange Act Report consisting of an Annual Report
filed on Form 10-K shall identify the aggregate number of Holders of Offered
Certificates and direct participants of the Depository holding positions (to the
extent the Trustee receives such information from the Depository) in Public
Certificates as of December 31 (or the nearest Business Day if such date is not
a Business Day) of the related year based on information provided by the Trustee
and the Depository. For each Exchange Act Report, the Trustee, shall prepare (i)
a manually-signed paper version of such report and (ii) an electronic version of
such report, which version shall be prepared as a Microsoft "Word for Windows"
file (or in such other format as the Trustee, the Depositor and the Servicer or
the Special Servicer may agree), that is suitable for filing via EDGAR. Exchange
Act Reports consisting of (i) a monthly Distribution Date Statement, a
Comparative Financial Status Report, Delinquent Loan Status Report, Historical
Loss Estimate Report, Historical Loan Modification Report, REO Status Report,
NOI Adjustment Worksheet, Operating Statement Analysis Worksheet, Watch List, or
other report pursuant to Section 4.02 shall be filed within ten days after each
Distribution Date; and (ii) an Annual Report on Form 10-K shall be filed on or
prior to March 15 of each calendar year. Manually-signed copies of each Exchange
Act Report shall be delivered to the Trustee.
All reports and notices or other information to be filed by the
Trustee, other than the monthly Distribution Date Statements, shall be delivered
by the Servicer to the Trustee no later than 8 days after each Distribution
Date, and shall be in an 80-column text format that is suitable for EDGAR filing
or such other format that is acceptable to theTrustee from time to time.
If information for any Exchange Act Report is incomplete by the date on
which such report is required to be filed under the Exchange Act, the Trustee
shall prepare and execute a Form 12b-25 under the Exchange Act. The Trustee
shall file the related report in electronic form when such information is
available.
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If the requirements of Section 15(d) of the Exchange Act have not been
met, the Trustee shall suspend filing reports with the Commission as of fiscal
year 2000 and shall file Form 15 with the Commission no later than January 30,
2000.
The Trustee shall solicit any and all proxies of the Certificateholders
whenever such proxies are required to be solicited pursuant to the Exchange Act
as the Trustee has been informed by the Depositor.
(f) The Servicer shall, in accordance with such reasonable rules and
procedures as it may adopt (which may include the requirement that an agreement
be executed, to the extent the Servicer deems such action to be necessary or
appropriate, to provide that such information shall be used solely for purposes
of evaluating the investment characteristics of the Certificates and shall be
used in accordance with applicable law governing securities), also make
available any additional information relating to the Mortgage Loans, the
Mortgaged Properties or the Mortgagors, for review by the Depositor, the
Underwriter, Rating Agencies and any other Persons to whom the Servicer believes
such disclosure is appropriate, in each case except to the extent doing so is
prohibited by applicable law or by any related Loan Documents related to a
Mortgage Loan.
(g) The Trustee shall make available at its offices during normal
business hours, or send to the requesting party at the expense of each such
requesting party (other than the Rating Agencies and the Depositor) for review
by the Depositor, the Rating Agencies, the Underwriters and any other Persons,
including any Certificateholder, to whom the Trustee, believes such disclosure
to be appropriate, the following items: (i) all financial statements, occupancy
information, rent rolls, retail sales information, average daily room rates and
similar information received by the Servicer or the Special Servicer, as
applicable, from each Borrower and delivered to the Trustee, (ii) the inspection
reports prepared by or on behalf of the Servicer or the Special Servicer, as
applicable, in connection with the property inspections pursuant to Section 3.12
and delivered to the Trustee, (iii) any and all statements and reports received
by the Servicer or the Special Servicer, as applicable, in accordance with
Section 3.12(b), but only to the extent such statements and reports have been
delivered to the Trustee (iv) any and all modifications, waivers and amendments
of the terms of a Mortgage Loan entered into by the Servicer or the Special
Servicer, as applicable, in accordance with Sections 3.08 and 3.20 and delivered
to the Trustee and (v) any and all officer's certificates and other evidence
delivered to the Trustee and the Depositor to support the Servicer's
determination that any Advance was, or if made would be, a Nonrecoverable
Advance. Copies of any and all of the foregoing items shall be available, to the
extent in their possession, from the Servicer or the Trustee, as applicable,
upon request (and certification to the Trustee and/or the Servicer of a
Certificateholder's status). The Servicer, Special Servicer or the Trustee, as
applicable, may request reimbursement from the Certificateholder requesting such
copies for the reasonable expense incurred in providing such copies to such
Certificateholder.
(h) Notwithstanding the obligations of the Servicer set forth in the
preceding provisions of this Section 4.02, the Servicer may withhold any
information not yet included in a Form 8-K filed with the Commission or
otherwise made publicly available with respect to which the Servicer has
determined that such withholding is appropriate.
(i) Notwithstanding any provisions in this Agreement to the contrary,
the Trustee shall not be required to review the content of any Exchange Act
Report for compliance with
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applicable securities laws or regulations, completeness, accuracy or otherwise,
and the Trustee shall have no liability with respect to any Exchange Act Report
filed with the Commission or delivered to Certificateholders. None of the
Servicer, the Special Servicer and the Trustee shall be responsible for the
accuracy or completeness of any information supplied by a Borrower or a third
party for inclusion in any Exchange Act Report, and each of the Servicer, the
Special Servicer and the Trustee, and each of their respective directors,
officers, employees and agents shall be indemnified and held harmless by the
Trust Fund against any loss, liability or expense incurred in connection with
any legal action relating to any statement or omission or alleged statement or
omission therein. None of the Trustee, the Special Servicer and the Servicer
shall have any responsibility or liability with respect to any Exchange Act
Report filed by or on behalf of the Depositor, and each of the Servicer, the
Special Servicer and the Trustee shall be indemnified and held harmless by the
Trust Fund against any loss, liability or expense incurred in connection with
any legal action relating to any statement or omission or alleged statement or
omission therein; provided, however, that the Servicer and the Special Servicer
may not be so indemnified for any loss, liabilities, damages or expenses caused
by its willful misconduct, bad faith or negligence.
SECTION 4.03. P&I Advances.
(a) On or before 2:00 p.m. Central time, on each Servicer Remittance
Date, the Servicer shall either (i) deposit into the Lower-Tier Distribution
Account from its own funds an amount equal to the aggregate amount of P&I
Advances, if any, to be made in respect of the related Distribution Date, (ii)
apply amounts held in the Certificate Account for future distribution to
Certificateholders in subsequent months in discharge of any such obligation to
make P&I Advances or (iii) make P&I Advances in the form of any combination of
(i) and (ii) aggregating the total amount of P&I Advances to be made. Any
amounts held in the Certificate Account for future distribution and so used to
make P&I Advances shall be appropriately reflected in the Servicer's records and
replaced by the Servicer by deposit in the Certificate Account on or before the
next succeeding P&I Advance Determination Date (to the extent not previously
replaced through the deposit of Late Collections of the delinquent principal
and/or interest in respect of which such P&I Advances were made). The Servicer
shall notify the Trustee and the Fiscal Agent by a certificate of the Servicing
Officer of (x) the amount of any Nonrecoverable P&I Advances for such
Distribution Date, and (y) the aggregate amount of P&I Advances for a
Distribution Date on or before the close of business on the Servicer Remittance
Date. If the Servicer fails to make a required P&I Advance by 2:00 p.m., Central
time, on any Servicer Remittance Date, an Event of Default as set forth in
clause (a)(i) of Section 7.01 shall occur and the Trustee shall make such P&I
Advance pursuant to Section 7.05, and if the Trustee fails to make such P&I
Advance by 11:00 a.m., Central time, on such Distribution Date, the Fiscal Agent
shall make such P&I Advance pursuant to Section 7.05 by 2:00 p.m., Central time,
on the Distribution Date. In the event that the Servicer fails to make a
required P&I Advance hereunder, the Paying Agent shall notify the Trustee and
the Fiscal Agent of such circumstances by 3:00 p.m. Central time on the related
Servicer Remittance Date.
(b) Subject to Section 4.03(c) and (e) below, the aggregate amount of
P&I Advances to be made by the Servicer with respect to any Distribution Date
shall equal the aggregate of: (i) all Monthly Payments (in each case, net of the
Servicing Fee and the Excess Fixed Yield) other than Balloon Payments, that were
due during the related Due Period and delinquent as of the close of business on
the Business Day preceding the related Servicer Remittance Date and (ii) with
respect to each Mortgage Loan as to which the related Balloon
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Payment was due during or prior to the related Due Period and was delinquent as
of the end of the related Due Period (including any REO Loan as to which the
Balloon Payment would have been past due), an amount equal to the Assumed
Scheduled Payment therefor. Subject to subsection (c) below, the obligation of
the Servicer to make such P&I Advances is mandatory, and with respect to any
Mortgage Loan or REO Loan, shall continue until the Distribution Date on which
the proceeds, if any, received in connection with a Liquidation Event with
respect thereto are to be distributed.
(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.
(d) In connection with the recovery of any P&I Advance out of the
Certificate Account pursuant to Section 3.05(a), the Servicer shall be entitled
to pay itself, the Trustee or the Fiscal Agent and as the case may be (in
reverse of such order with respect to any Mortgage Loan), out of any amounts
then on deposit in the Certificate Account, interest at the Reimbursement Rate
in effect from time to time, accrued on the amount of such P&I Advance (except
for amounts applied from the Certificate Account as set forth in Section
4.03(a)(ii) above) from the date made to but not including the date of
reimbursement compounded monthly. The Servicer shall reimburse itself, the
Trustee or the Fiscal Agent, as the case may be, for any outstanding P&I Advance
as soon as practicably possible after funds available for such purpose are
deposited in the Certificate Account.
(e) Notwithstanding the foregoing, none of the Servicer, the Trustee
and the Fiscal Agent shall be required to make an Advance for (i) Excess
Interest, Penalty Charges, Prepayment Premiums, Yield Maintenance Charges or the
portion of any Prepayment Interest Shortfalls not offset by the portion of the
Servicing Fee that represents compensation to the Servicer and Excess Fixed
Yield, (ii) with respect to any Distribution Date and any Mortgage Loan subject
to an Appraisal Reduction Event, the Appraisal Reduction Amount and (iii)
subject to Section 3.26(iv), any Advance that, upon making such Advance, would
become a Nonrecoverable Advance.
SECTION 4.04. Allocation of Collateral Support Deficit.
(a) On each Distribution Date, immediately following the distributions
to be made on such date pursuant to Section 4.01 and the allocation of
Certificate Deferred Interest pursuant to Section 4.06, the Trustee or the
Paying Agent shall calculate the amount, if any, by which (i) the aggregate
Stated Principal Balance of the Mortgage Loans and any REO Loans expected to be
outstanding immediately following such Distribution Date, is less than (ii) the
then aggregate Certificate Balance of the Regular Certificates (other than Class
X Certificates, which have no Certificate Balance) after giving effect to
distributions of principal on such Distribution Date and the allocation of
Certificate Deferred Interest pursuant to Section 4.06 (any such deficit, the
"Collateral Support Deficit"). Any allocation of Collateral Support Deficit to a
Class of Regular Certificates shall be made by reducing the Certificate Balance
thereof by the amount so allocated. Any Collateral Support Deficit 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. The allocation of Collateral Support Deficit shall constitute an
allocation of losses and other shortfalls experienced by the Trust Fund.
Reimbursement of previously allocated Collateral Support Deficit will not
constitute distributions of principal for
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any purpose and will not result in an additional reduction in the Certificate
Balance of the Class of Certificates in respect of which any such reimbursement
is made.
(b) On each Distribution Date, the Certificate Balances of the Regular
Certificates will be reduced without distribution as a write-off to the extent
of any Collateral Support Deficit, if any, allocable to such Certificates with
respect to such Distribution Date. Any such write-off shall be allocated among
the respective Certificates as follows: first, to the Class I Certificates;
second, to the Class H Certificates; third, to the Class G Certificates; fourth,
to the Class F Certificates; fifth, to the Class E Certificates; sixth, to the
Class D Certificates; seventh, to the Class C Certificates; eighth, to the Class
B Certificates, in each case, until the remaining Certificate Balance of each
such Class of Certificates has been reduced to zero and ninth, to the Class A-1
Certificates and the Class A-2 Certificates, pro rata (based upon Certificate
Balance), until the remaining Certificate Balances of such Classes of
Certificates have been reduced to zero.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates pursuant to Section 4.04(b) with
respect to such Distribution Date shall reduce the Lower-Tier Principal Amount
of the Related Uncertificated Lower-Tier Interest with respect thereto as a
write-off.
SECTION 4.05. Appraisal Reductions.
The aggregate Appraisal Reduction will be allocated by the Trustee on
each Distribution Date to the Certificate Balance of the Class I, Class H, Class
G, Class F, Class E, Class D, Class C and Class B Certificates, in that order,
up to the amount of their respective Certificate Balances. On any Distribution
Date, an Appraisal Reduction that otherwise would be allocated to a Class of
Certificates will be allocated to the next most subordinate Class to the extent
that the Certificate Balance for such Class of Certificates (prior to taking the
Appraisal Reduction into account) is less than the aggregate Appraisal Reduction
for such Distribution Date.
SECTION 4.06. Certificate Deferred Interest.
(a) On each Distribution Date, the amount of interest distributable to
a Class of Certificates (other than the Class X Certificates) shall be reduced
by an amount equal to the amount of Mortgage Deferred Interest for all Mortgage
Loans for the Due Dates occurring in the related Due Period allocated to such
Class of Certificates, such Mortgage Deferred Interest to be allocated first to
the Class I Certificates, second to the Class H Certificates, third to the Class
G Certificates, fourth to the Class F Certificates, fifth to the Class E
Certificates, sixth to the Class D Certificates; seventh to the Class C
Certificates, eighth to the Class B Certificates, and ninth, pro rata (based
upon Accrued Certificate Interest), to the Class A-1 and Class A-2 Certificates,
in each case up to the respective Accrued Certificate Interest for each such
Class of Certificates for such Distribution Date.
(b) On each Distribution Date, the Certificate Balances of the Class
A-1, Class A-2, Class B, Class C, Class D, Class E, Class F, Class G, Class H
and Class I Certificates shall be increased by the amount of the Certificate
Deferred Interest allocated to such Class of Certificates on such Distribution
Date pursuant to Section 4.06(a) above.
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(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to Section
4.06(a) to a Class of Certificates shall be allocated in reduction of the amount
of interest distributable to the Related Uncertificated Lower-Tier Interest with
respect thereto. On each Distribution Date, to the extent provided in Section
4.06(b), Certificate Deferred Interest will be added to the Lower-Tier Principal
Amount of the Uncertificated Lower-Tier Interests in the same manner as the
interest thereon was reduced pursuant to the preceding sentence.
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits A-1 through and including A-15. The Certificates will
be issuable in registered form only; provided, however, that in accordance with
Section 5.03, beneficial ownership interests in the Class A, Class B, Class C,
Class D and Class X Certificates shall initially be held and transferred through
the book-entry facilities of the Depository and, if and for so long as they are
accepted for trading through the PORTAL System, in accordance with Section 5.03,
beneficial interests in the Class E, Class F, Class G, Class H and Class I
Certificates also initially shall be held and transferred through the book-entry
facilities of the Depository. The Class R and Class LR Certificates will each be
issuable in one or more registered, definitive physical certificates (each, a
"Definitive Certificate") substantially in the form of Certificates of each
Class and with such applicable legends as are set forth in the Exhibits hereto
corresponding to such Class. Each Certificate will share ratably in all rights
of the related Class. The Class X Certificates will be issuable only in minimum
Denominations of authorized initial Notional Amount of not less than $25,000 and
in integral multiples of $1,000 in excess thereof. The Offered Certificates
(other than the Class X Certificates) will be issuable only in minimum
Denominations of authorized initial Certificate Balance of not less than
$25,000, and in integral multiples of $1,000 in excess thereof. The Non-Public
Certificates (other than the Residual Certificates) will be issuable in minimum
Denominations of authorized initial Certificate Balance of not less than
$250,000, and in integral multiples of $1,000 in excess thereof. If the Original
Certificate Balance or initial Notional Amount, as applicable, of any Class does
not equal an integral multiple of $1,000, then a single additional Certificate
of such Class may be issued in a minimum denomination of authorized initial
Certificate Balance or initial Notional Amount, as applicable, that includes the
excess of (i) the Original Certificate Balance or initial Notional Amount, as
applicable, of such Class over (ii) the largest integral multiple of $1,000 that
does not exceed such amount.
(b) The Class R and Class LR Certificates will be issuable only in one
or more Definitive Certificates in denominations representing Percentage
Interests of not less than 25%.
(c) With respect to any Certificate or any beneficial interest in a
Certificate, the "Denomination" thereof shall be (i) the amount (a) set forth on
the face thereof or, (b) set forth on a schedule attached thereto or (c) in the
case of any beneficial interest in a Book-Entry Certificate, the interest of the
related Certificate Owner in the applicable Class of Certificates as reflected
on the books and records of the Depository or related Participants, as
applicable, (ii) expressed in terms of initial Certificate Balance or initial
Notional Amount, as applicable, and (iii) be in an authorized denomination, as
set forth above.
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(d) The Book-Entry Certificates will be issued as one or more
certificates registered in the name of a nominee designated by the Depository,
and Certificate Owners will hold interests in the Book-Entry Certificates
through the book-entry facilities of the Depository in the minimum Denominations
and aggregate Denominations as set forth in the above. No Certificate Owner of a
Book-Entry Certificate of any Class thereof will be entitled to receive a
Definitive Certificate representing its interest in such Class, except as
provided in Section 5.03 herein. Unless and until Definitive Certificates are
issued in respect of a Class of Book-Entry Certificates, beneficial ownership
interests in such Class of Certificates will be maintained and transferred on
the book-entry records of the Depository and Depository Participants, and all
references to actions by Holders of such Class of Certificates will refer to
action taken by the Depository upon instructions received from the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures and, except as otherwise set forth
herein, all references herein to payments, notices, reports and statements to
Holders of such Class of Certificates will refer to payments, notices, reports
and statements to the Depository or its nominee as the registered Holder
thereof, for distribution to the related registered Holders of Certificates
through the Depository Participants in accordance with the Depository's
procedures.
(e) The Certificates shall be executed by manual or facsimile signature
on behalf of the Certificate Registrar by an authorized officer. 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. LaSalle Bank
National Association, is hereby initially appointed Authenticating Agent with
power to act on the Trustee's behalf in the authentication and delivery of the
Certificates in connection with transfers and exchanges as herein provided. If
the Authenticating Agent resigns or is terminated, the Trustee shall appoint a
successor Authenticating Agent which may be the Trustee or an Affiliate thereof.
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.
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 shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
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LaSalle Bank National Association, is hereby initially appointed 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
Fiscal Agent, the Special Servicer and the Servicer, any other bank or trust
company to act as Certificate Registrar under such conditions as the predecessor
Certificate Registrar may prescribe; provided, however, that the predecessor
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment. If the Certificate
registrar resigns as Certificate Registrar, the Trustee shall immediately
succeed to its predecessor's duties as Certificate Registrar.
The Depositor, the Trustee, the Fiscal Agent, the Paying Agent, the
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. The names and addresses of
all Certificateholders and the names and addresses of the transferees of any
Certificates shall be registered in the Certificate Register; provided, however,
in no event shall the Certificate Registrar be required to maintain in the
Certificate Register the names of Certificate Owners.
The Person in whose name any Certificate is so registered shall be
deemed and treated as the sole owner and Holder thereof for all purposes of this
Agreement and the Certificate Registrar, the Servicer, the Trustee, the Fiscal
Agent, the Paying Agent, the Special Servicer and any agent of any of them shall
not be affected by any notice or knowledge to the contrary.
A Definitive Certificate is transferable or exchangeable only upon the
surrender of such Certificate to the Certificate Registrar at its office
maintained at 135 South LaSalle Street, Suite 1625, Chicago, Illinois 60674, or
at the Corporate Trust Office, if the Trustee is the Certificate Registrar (the
"Registrar Office") together with an assignment and transfer (executed by the
Holder or his duly authorized attorney). Subject to the requirements of Sections
5.02(b), (c) and (d), the Certificate Registrar shall execute and the
Authenticating Agent shall duly authenticate in the name of the designated
transferee or transferees, one or more new Certificates in Denominations of a
like aggregate Denomination as the Definitive Certificate being surrendered.
Such Certificates shall be delivered by the Certificate Registrar in accordance
with Section 5.02(e). Each Certificate surrendered for registration of transfer
shall be cancelled, and the Certificate Registrar shall hold such cancelled
Certificates in accordance with its standard procedures.
No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange referred
to in this Section 5.02 other than as defined in this paragraph. In connection
with any transfer to an Institutional Accredited Investor, the transferor shall
reimburse the Certificate Registrar for any costs (including the cost of the
Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided in Section 5.02(h) herein) incurred by the Certificate Registrar in
connection with such transfer. With respect to any transfer or exchange of any
Certificate, the Certificate Registrar may require payment by each transferor of
a sum sufficient to cover any tax, expense or other governmental charge payable
in connection with any such transfer or exchange.
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(b) If a transfer of Non-Public Securities (other than a transfer by
the Depositor to an Affiliate thereof) is to be made in reliance upon an
exemption from the Securities Act, and under applicable state securities laws,
the Certificate Registrar shall require (in the case of a Definitive
Certificate) that the transferee deliver to the Certificate Registrar an
investment representation letter (the "Investment Representation Letter")
substantially in the form of Exhibit C attached hereto, which Investment
Representation Letter shall certify, among other things, that (subject to the
first proviso to this sentence) the transferee is an institutional "accredited
investor" as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act or an entity all of the equity owners of which come within
such paragraphs (an "Institutional Accredited Investor") or a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act (a
"Qualified Institutional Buyer"); provided, however, that no transfer of an
Ownership Interest in a Residual Certificate may be made to any person other
than a Qualified Institutional Buyer and that transfers of Non-Public
Certificates other than the Residual Certificates may be made only to Eligible
Investors; provided further that a transfer of a Non-Public Certificate may be
made to a trust that is otherwise eligible to purchase such Certificate if the
transferor provides to the Certificate Registrar and to the Trustee a
certification that interests in such trust may only be transferred subject to
requirements substantially to the effect set forth in this Section 5.02.
None of the Depositor, the Trustee, the Fiscal Agent, the Servicer or
the Certificate Registrar is obligated to register or qualify any Class of
Non-Public 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-Public Certificate without registration or qualification.
Any Holder of a Non-Public Certificate desiring to effect such a transfer shall,
and does hereby agree to, indemnify the Depositor, the Trustee, the Fiscal
Agent, the Servicer and the Certificate Registrar and their respective officers,
directors, employees, agents and Control Persons 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.
The Servicer will furnish, or cause to be furnished, upon the request
of any Holder of Non-Public Certificates, to a prospective purchaser of such
Non-Public Certificates who is a Qualified Institutional Buyer, such information
as is specified in paragraph (d)(4) of Rule 144A with respect to the Trust Fund,
unless, at the time of such request, the entity with respect to which such
information is to be provided is subject to the reporting requirements of
Section 15(d) of the Exchange Act.
Unless the Certificate Registrar determines otherwise in accordance
with applicable law and the rules and procedures of, or applicable to, the
Depository (the "Depository Rules"), transfers of a beneficial interest in a
Book-Entry Certificate representing an interest in a Non-Public Certificate that
is not rated in one of the top four rating categories by a NRSRO to an
Institutional Accredited Investor will require delivery in the form of a
Definitive Certificate, and the Certificate Registrar shall register such
transfer only upon compliance with the foregoing provisions of this Section
5.02(b).
Transfers of a beneficial interest in a Book-Entry Certificate
representing an interest in a Non-Public Certificate may be made to a Qualified
Institutional Buyer by means of the PORTAL System or another "SRO Rule 144A
System" approved for such purpose by the Commission.
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Unless the Non-Public Certificates have been registered under the
Securities Act, each of the Non-Public Certificates shall bear a legend
substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
RESOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF
THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS
DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO
DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF
EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT.
Unless the Non-Public Certificates (other than the Residual
Certificates) have been registered under the Securities Act, each of such
Certificates shall bear a legend substantially to the following effect:
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (B) TO AN INSTITUTIONAL "ACCREDITED INVESTOR")
WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME
WITHIN SUCH PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES
TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE
REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST
PAGE OF THIS CERTIFICATE.
Unless the Residual Certificates have been registered under the
Securities Act, each of such Certificates shall bear a legend substantially to
the following effect:
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
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("RULE 144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, SUBJECT TO THE COMPLETION AND
DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
(c) With respect to the Subordinate Certificates, no sale, transfer,
pledge or other disposition by any Holder of any such Certificate that is a
Definitive Certificate shall be made unless the Certificate Registrar shall have
received a representation letter from the proposed purchaser or transferee of
such Certificate substantially in the form of Exhibit G attached hereto, to the
effect that such proposed purchaser or transferee is not (a) an employee benefit
plan subject to the fiduciary responsibility provisions of ERISA or Section 4975
of the Code, or a governmental plan (as defined in Section 3(32) of ERISA)
subject to any federal, state or local law ("Similar Law") which is, to a
material extent, similar to the foregoing provisions of ERISA or the Code (each
a "Plan") or (b) a person acting on behalf of or using the assets of any such
Plan (including an entity whose underlying assets include Plan assets by reason
of investment in the entity by such Plan and the application of Department of
Labor Regulation ss.2510.3-101), other than an insurance company using the
assets of its general account under circumstances whereby the purchase and
holding of such Certificates by such insurance company would be exempt from the
prohibited transaction provisions of ERISA and the Code under Prohibited
Transaction Exemption 95-60. The Certificate Registrar shall not register the
sale, transfer, pledge or other disposition of any such Definitive Certificate
unless the Certificate Registrar has received the representation letter
described above. The cost of the foregoing representation letters shall not be
borne by any of the Depositor, the Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Paying Agent, the Underwriter, the Initial Purchasers, the
Certificate Registrar or the Trust Fund. Each Certificate Owner of a Subordinate
Certificate shall be deemed to represent that it is not a Person specified in
clauses (a) or (b) above. Any transfer, sale, pledge or other disposition of any
such Certificates that would constitute or result in a prohibited transaction
under ERISA, Section 4975 of the Code or any Similar Law, or would otherwise
violate the provisions of this Section 5.02(c) shall be deemed absolutely null
and void ab initio, to the extent permitted under applicable law.
With respect to the transfer of any Subordinate Certificate that is a
Book-Entry Certificate, the transferee or purchaser thereof, or of any
beneficial interest therein, by accepting the transfer of such Certificate or
interest therein, represents and warrants to the Depositor, Trustee, Fiscal
Agent, Paying Agent, Certificate Registrar, Servicer, Special Servicer and
transferor thereof that it is not (a) a Plan or (b) a person acting on behalf of
or using the assets of any such Plan (including an entity whose underlying
assets include Plan assets by reason of investment in the entity by such Plan
and the application of Department of Labor Regulation ss.2510.3-101), other than
an insurance company using the assets of its general account under circumstances
whereby the purchase and holding of such Certificates by such insurance company
would be exempt from the prohibited transaction provisions of ERISA and the Code
under Prohibited Transaction Class Exemption 95-60. Any transfer, sale, pledge
or other disposition of any such Certificates as to which such representation is
false, or that otherwise would constitute or result in a prohibited transaction
under ERISA, Section 4975 of the Code or any Similar Law, or would otherwise
violate the provisions of this Section 5.02(c), shall be deemed absolutely null
and void ab initio, to the extent permitted under applicable law.
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So long as any of the Class of Certificates remains outstanding, the
Servicer will make available, or cause to be made available, upon request, to
any Holder and any Person to whom any such Certificate of any such Class of
Certificates may be offered or sold, transferred, pledged or otherwise disposed
of by such Holder, information with respect to the Servicer, the Special
Servicer or the Mortgage Loans necessary to the provision of an Opinion of
Counsel described in this Section 5.02(c).
Each of the Subordinate Certificates shall bear a legend substantially
to the following effect:
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED (IN THE CASE OF THE
INITIAL SALE OR TRANSFERS TO PURCHASERS WHO TAKE IN DEFINITIVE FORM) UNLESS
THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER AN ERISA REPRESENTATION
LETTER FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN
FORM AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE
DEPOSITOR, TO THE EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT
(i) AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF
ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") WHICH IS,
TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING PROVISIONS OF ERISA OR THE
CODE (EACH A "PLAN") OR (ii) A PERSON ACTING ON BEHALF OF OR USING THE
ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE
APPLICATION OF DEPARTMENT OF LABOR REGULATION ss. 2510.3-101), OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES
BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60. ANY TRANSFEREE OF A BENEFICIAL INTEREST IN THIS CERTIFICATE
HELD IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE SHALL BE
DEEMED TO HAVE MADE THE FOREGOING REPRESENTATIONS.
(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) below to deliver
payments to a Person other than such Person. The rights of each Person acquiring
any Ownership Interest in a Residual Certificate are expressly subject to the
following provisions:
(A) No Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Disqualified Organization or agent
thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a
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Person acting on behalf of or investing the assets of a Plan (such
Plan or Person, an "ERISA Prohibited Holder") or a Non-U.S. Person and
shall promptly notify the Servicer, the Trustee and the Certificate
Registrar of any change or impending change to such status;
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit substantially in the form attached hereto as Exhibit D-1 (a
"Transfer Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing and
warranting, among other things, that such Transferee is not a
Disqualified Organization or Agent thereof, an ERISA Prohibited Holder
or a Non-U.S. Person, 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 by a
proposed Transferee under clause (b) above, if the Certificate
Registrar has actual knowledge that the proposed Transferee is a
Disqualified Organization or Agent thereof, an ERISA Prohibited Holder
or a Non-U.S. Person, no Transfer of an Ownership Interest in a
Residual Certificate to such proposed Transferee shall be effected; and
(D) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (1) to require a Transfer Affidavit
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 letter substantially
in the form attached hereto as Exhibit D-2 (a "Transferor Letter")
certifying that, among other things, it has no actual knowledge that
such prospective Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person.
(ii) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section 5.02(d),
then the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(d) shall be restored, to
the extent permitted by law, to all rights as Holder thereof retroactive to
the date of registration of such Transfer of such Residual Certificate. None
of the Trustee, the Servicer, the Authenticating Agent and 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; provided, however, that the
Certificate Registrar shall be under such liability for a registration of
Transfer of a Residual Certificate if a Responsible Officer of the
Certificate Registrar has actual knowledge or should reasonably have had
actual knowledge that the proposed Transferee is a Disqualified Organization
or Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person in
violation of Section 5.02(d)(i)(C) above.
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(iii) The Servicer shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions, upon written
request of the Trustee, all information in its possession and necessary to
compute any tax imposed as a result of the Transfer of an Ownership Interest
in a Residual Certificate to any Person who is a Disqualified Organization
or Agent thereof, including the information described in Treasury
Regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the
"excess inclusions" of such Residual Certificate.
(e) Subject to the restrictions on transfer and exchange set forth in
this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section 5.02
and Depository Rules, any Certificate Owner owning a beneficial interest in a
Non-Public Certificate may cause the Certificate Registrar to request that the
Depository exchange such Certificate Owner's beneficial interest in a Book-Entry
for a Definitive Certificate or Certificates. Following a proper request for
transfer or exchange, the Certificate Registrar shall, within 5 Business Days of
such request if made at such Registrar Office, or within 10 Business Days if
made at the office of a transfer agent (other than the Certificate Registrar),
execute and deliver at such Registrar Office or at the office of such transfer
agent, as the case may be, to the transferee (in the case of transfer) or Holder
(in the case of exchange) or send by first class mail (at the risk of the
transferee in the case of transfer or Holder in the case of exchange) to such
address as the transferee or Holder, as applicable, may request, a Definitive
Certificate or Certificates, as the case may require, for a like aggregate
Denomination and in such Denomination or Denominations as may be requested. The
presentation for transfer or exchange of any Definitive Certificate shall not be
valid unless made at the Registrar Office or at the office of a transfer agent
by the registered Holder in person, or by a duly authorized attorney-in-fact.
The Certificate Registrar may decline to accept any request for an exchange or
registration of transfer of any Certificate during the period of 15 days
preceding any Distribution Date.
(f) In the event a Responsible Officer of the Certificate Registrar has
actual knowledge that (i) a Definitive Certificate (other than a Definitive
Certificate issued in exchange for a Certificate representing an interest in an
Offered Certificate) is being held by or for the benefit of a Person who is not
an Eligible Investor or (ii) that (A) a beneficial interest in a Book-Entry
Certificate representing a Non-Public Certificate or (B) any Residual
Certificate is held by or for the benefit of a Person who is not a Qualified
Institutional Buyer or (iii) that such holding is unlawful under the laws of a
relevant jurisdiction, then the Certificate Registrar shall have the right to
void such transfer, if permitted under applicable law, or to require the
investor to sell such Definitive Certificate or beneficial interest in such
Book-Entry Certificate to an Eligible Investor (in the case of a circumstance
described in clause (i) or (iii) above) or to a Qualified Institutional Buyer
(in the case of a circumstance described in clause (ii) above) within 14 days
after receipt of written notice or a Responsible Officer otherwise obtains
actual knowledge of such determination and each Certificateholder by its
acceptance of a Certificate authorizes the Certificate Registrar to take such
action.
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(g) The Certificate Registrar shall provide to the Trustee, the
Servicer, the Special Servicer, the Paying Agent and the Depositor, upon request
of any such party, an updated copy of the Certificate Register.
(h) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 except as provided below. In
connection with any transfer to an Institutional Accredited Investor, the
transferor shall reimburse the Trust Fund for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided herein) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
(i) All Certificates surrendered for transfer and exchange shall be
physically cancelled by the Certificate Registrar, and the Certificate Registrar
shall hold or destroy such cancelled Certificates in accordance with its usual
procedures.
SECTION 5.03. Book-Entry Certificates.
(a) The Regular Certificates shall initially be issued as one or more
Certificates registered in the name of the Depository or its nominee and, except
as provided in subsection (c) below, transfer of such Certificates may not be
registered by the Certificate Registrar unless such transfer is to a successor
Depository that agrees to hold such Certificates for the respective Certificate
Owners with Ownership Interests therein. Such Certificate Owners shall hold and
transfer their respective Ownership Interests in and to such Certificates
through the book-entry facilities of the Depository and, except as provided in
Section 5.02(e) above or subsection (c) below, shall not be entitled to
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 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 Servicer, the Special Servicer, the Paying Agent,
the Fiscal Agent, 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.
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(c) If (i)(A) the Depositor advises the Trustee, the Paying Agent and
the Certificate Registrar in writing that the Depository is no longer willing or
able to properly discharge its responsibilities with respect to 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, the Paying Agent and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to all, any Class or any portion of
any Class of the Certificates or (iii) the Trustee determines that Definitive
Certificates are required in accordance with the provisions of Section 5.03(e),
the Paying Agent shall notify the affected Certificate Owners of the occurrence
of any such event and of the availability of Definitive Certificates to
Certificate Owners requesting the same. Upon surrender to the Certificate
Registrar of the Book-Entry Certificates by the Depository or any custodian
acting on behalf of the Depository, accompanied by registration instructions
from the Depository for registration of transfer, the Certificate Registrar
shall execute, and the Authenticating Agent shall authenticate and deliver,
within 5 Business Days of such request if made at the Registrar Office, or
within 10 Business Days if made at the office of a transfer agent (other than
the Certificate Registrar), the Definitive Certificates to the Certificate
Owners identified in such instructions. None of the Depositor, the Paying Agent,
the Servicer, the Trustee, the Fiscal Agent, the Special Servicer, the
Authenticating Agent and 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 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) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the
Certificate Registrar for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede &
Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such
other entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede
& Co., has an interest herein.
The Book-Entry Certificates may be deposited with such other Depository
as the Certificate Registrar may from time to time designate, and shall bear
such legend as may be appropriate.
(e) If the Trustee has instituted or has been directed to institute any
judicial proceeding in a court to enforce the rights of the Certificateholders
under the Certificates, and the Trustee has been advised by counsel that in
connection with such proceeding it is necessary or appropriate for the Trustee
to obtain possession of all or any portion of the Certificates evidenced by
Book-Entry Certificates, the Trustee may in its sole discretion determine that
such Certificates shall no longer be represented by such Book-Entry
Certificates. In such event, the Certificate
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Registrar will execute, the Authenticating Agent will authenticate and the
Certificate Registrar will deliver, in exchange for such Book-Entry
Certificates, Definitive Certificates in a Denomination equal to the aggregate
Denomination of such Book-Entry Certificates to the party so requesting such
Definitive Certificates. In such event, the Trustee shall notify the affected
Certificate Owners and make appropriate arrangements for the effectuation of the
purpose of this clause.
(f) Upon acceptance for exchange or transfer of a beneficial interest
in a Book-Entry Certificate for a Definitive Certificate, as provided herein,
the Certificate Registrar shall endorse on a schedule affixed to the related
Book-Entry Certificate (or on a continuation of such scheduled affixed to such
Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Definitive Certificate issued in exchange therefor or upon
transfer thereof.
(g) If a Holder of a Definitive Certificate wishes at any time to
transfer such Certificate to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Book-Entry Certificate, such transfer may
be effected only in accordance with Depository Rules and this Section 5.03(g).
Upon receipt by the Certificate Registrar at the Registrar Office of (i) the
Definitive Certificate to be transferred with an assignment and transfer
pursuant to Section 5.02(a), (ii) written instructions given in accordance with
Depository Rules directing the Certificate Registrar to credit or cause to be
credited to another account a beneficial interest in the related Book-Entry
Certificate, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (iii) a written order given in accordance with
the Depository Rules containing information regarding the account to be credited
with such beneficial interest and (iv) if the affected Certificate is a
Non-Public Certificate, an Investment Representation Letter from the transferee
to the effect that such transferee is a Qualified Institutional Buyer, the
Certificate Registrar shall cancel such Definitive Certificate, execute and
deliver a new Definitive Certificate for the Denomination of the Definitive
Certificate not so transferred, registered in the name of the Holder or the
Holder's transferee (as instructed by the Holder), and the Certificate Registrar
shall instruct the Depository or the custodian holding such Book-Entry
Certificate on behalf of the Depository to increase the Denomination of the
related Book-Entry Certificate by the Denomination of the Definitive Certificate
to be so transferred, and to credit or cause to be credited to the account of
the Person specified in such instructions a corresponding Denomination of such
Book-Entry Certificate.
(h) Neither the Trustee nor the Certificate Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with any
restriction or transfer imposed under Article V of 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 Article V applicable with respect to changes in
registration of record ownership of Certificates in the Certificate Register and
to confirm that the form of such certifications is in compliance with the form
requirements set forth in Article V. Other than for the obligation of the
Trustee or the Certificate Registrar described in the previous sentence to
require delivery of certifications and opinions of counsel, the Trustee and the
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, Certificate owners or Certificateholders made in
violation of applicable restrictions.
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SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (ii) there is delivered to
the Trustee and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of actual
notice to the Trustee or the Certificate Registrar that such Certificate has
been acquired by a bona fide purchaser, the Certificate Registrar shall execute,
and the Authenticating Agent shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of the same Class and of 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 Trust Fund, 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 presentation of a Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Paying Agent, the Certificate Registrar and any agents of any
of them may treat the person in whose name such Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Section 4.01 and for all other purposes whatsoever, except as and to the extent
provided in the definition of "Certificateholder," and none of the Depositor,
the Servicer, the Special Servicer, the Trustee, the Paying Agent, the
Certificate Registrar and any agent of any of them shall be affected by notice
to the contrary except as provided in Section 5.02(d).
SECTION 5.06. Appointment of Paying Agent.
LaSalle Bank National Association, is hereby initially appointed Paying
Agent. If the Paying Agent resigns or is terminated, the Trustee shall appoint a
successor Paying Agent which may be an Affiliate thereof; provided, however,
that if the Trustee resigns as Paying Agent in connection with its resignation
as Trustee pursuant to Section 8.07, the Depositor shall appoint a successor
Paying Agent. Any Paying Agent will hold funds it received in such capacity only
in Eligible Accounts.
ARTICLE VI
THE DEPOSITOR, THE
SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Servicer and the Special
Servicer.
The Depositor, the 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 Servicer and the
Special Servicer herein.
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SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, the
Servicer or the Special Servicer.
(a) Subject to subsection (b) below, the Depositor, the Servicer and
the Special Servicer each will keep in full effect its existence, rights and
franchises as a corporation or limited liability company, as the case may be,
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
entity 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.
(b) The Depositor, the Servicer and the Special Servicer each may be
merged or consolidated with or into any Person, or transfer all or substantially
all of its assets to any Person, in which case any Person resulting from any
merger or consolidation to which the Depositor, the Servicer or the Special
Servicer shall be a party, or any Person succeeding to the business of the
Depositor, the Servicer or the Special Servicer, shall be the successor of the
Depositor, the Servicer and the Special Servicer, as the case may be, hereunder,
without the execution or filing of any paper (other than an assumption agreement
wherein the successor shall agree to perform the obligations of and serve as the
Depositor, the Servicer or the Special Servicer, as the case may be, in
accordance with the terms of this Agreement) or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding;
provided, however, that such merger, consolidation or succession will not result
in a withdrawal, downgrading or qualification of the then-current ratings of the
Classes of Certificates that have been so rated (as evidenced by a letter to
such effect from each Rating Agency).
SECTION 6.03. Limitation on Liability of the Depositor, the Servicer,
the Special Servicer.
(a) Neither the Depositor, the Servicer, the Special Servicer nor any
of the directors, officers, employees or agents of any of the foregoing shall be
under any liability to the Trust or 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 this provision
shall not protect the Depositor, the Servicer, the Special Servicer or any such
Person against any breach of warranties or representations made herein or 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 and duties hereunder. The Depositor, the Servicer, the
Special Servicer and any director, officer, manager, member, employee or agent
of the Depositor, the 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 Servicer, the Special Servicer and any director,
officer, manager, member, employee or agent of any of the foregoing shall be
indemnified and held harmless by the Trust against any loss, liability, expense,
penalties, fines, forfeitures, legal fees and related costs incurred in
connection with any legal action or proceeding relating to this Agreement or the
Certificates (including any legal action, claim or proceeding arising from the
performance of its duties hereunder), other than any loss, liability or expense:
(i) specifically required to be borne thereby pursuant to the terms hereof; (ii)
incurred in connection with any breach of a representation, warranty or covenant
made by it herein; (iii) incurred by reason of
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bad faith, willful misconduct or negligence in the performance of its
obligations or duties hereunder, or by reason of negligent disregard of such
obligations or duties or (iv) in the case of the Depositor and any of its
directors, officers, employees and agents, incurred in connection with any
violation by any of them of any state or federal securities law.
(b) None of the Depositor, the Servicer and the Special Servicer shall
be under any obligation to appear in, prosecute or defend any legal or
administrative action, proceeding, hearing or examination that is not incidental
to its respective duties under this Agreement and which in its opinion may
involve it in any expense or liability; provided, however, that the Depositor,
the Servicer or the Special Servicer may in its discretion undertake any such
action, proceeding, hearing or examination that it may deem necessary or
desirable in respect to this Agreement and 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, proceeding, hearing or examination and
any liability resulting therefrom shall be expenses, costs and liabilities of
the Trust Fund, and the Depositor, the Servicer and the Special Servicer shall
be entitled to be reimbursed therefor out of amounts attributable to the
Mortgage Loans on deposit in the Certificate Account as provided in this Section
6.0 by Section 3.05(a); provided, however, that neither the Depositor, the
Servicer nor the Special Servicer may be reimbursed for any expenses in
circumstances where they would not otherwise be entitled to indemnification
under this Agreement.
(c) Each of the Servicer and the Special Servicer agrees to indemnify
the Depositor, the Trustee, the Fiscal Agent and the Trust and any director,
officer, employee, agent or Control Person thereof, and hold them harmless, from
and against any and all claims, losses, penalties, fines, forfeitures, legal
fees and related costs, judgments, and any other costs, liabilities, fees and
expenses that any of them may sustain arising from or as a result of any willful
misfeasance, bad faith or negligence of the Servicer or the Special Servicer, as
the case may be, in the performance of its obligations and duties under this
Agreement (including acts or omissions occurring in their capacity as agent for
the Trustee) or by reason of reckless disregard by the Servicer or the Special
Servicer, as the case may be, of its duties and obligations hereunder or by
reason of breach of any representations or warranties made herein. The Trustee,
the Depositor or the Fiscal Agent, as the case may be, shall immediately notify
the Servicer or the Special Servicer, as applicable, if a claim is made by a
third party with respect to this Agreement or the Mortgage Loans entitling it to
indemnification hereunder, whereupon the Servicer or the Special Servicer, as
the case may be, shall assume the defense of such claim (with counsel reasonably
satisfactory to the Trustee, the Depositor or the Fiscal Agent) and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Servicer or the
Special Servicer, as the case may be, shall not affect any rights any of the
foregoing Persons may have to indemnification under this Agreement or otherwise,
unless the Servicer's, or the Special Servicer's, as the case may be, defense of
such claim is materially prejudiced thereby.
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The indemnifications provided in this Section 6.03 herein shall survive
the termination of this Agreement and the termination or resignation of the
Servicer, the Trustee, the Fiscal Agent and the Special Servicer.
SECTION 6.04. Depositor, Servicer and Special Servicer Not to Resign.
Subject to the provisions of Section 6.02, none of the Depositor, the
Servicer and the Special Servicer shall resign from their respective obligations
and duties hereby imposed on each of them except (a) upon determination that
such party's duties hereunder are no longer permissible under applicable law or
are in material conflict with, by reason of applicable law, the other activities
carried on by it or (b) in the case of the Servicer or Special Servicer, upon
the appointment of, and the acceptance of such designation or appointment by, a
successor Servicer or Special Servicer, as the case may be, and receipt by the
Trustee of written confirmation from each applicable Rating Agency that such
resignation and appointment will not cause the Rating Agency to downgrade,
withdraw or qualify any of the ratings assigned by the Rating Agency to any
Class of Certificates. Any such determination permitting the resignation of the
Depositor, the Servicer or the Special Servicer pursuant to clause (a) above
shall be evidenced by an Opinion of Counsel (at the expense of the resigning
party) to such effect delivered to the Trustee. No such resignation by the
Servicer or the Special Servicer shall become effective until the Trustee or a
successor Servicer shall have assumed the Servicer's or Special Servicer's, as
applicable, responsibilities and obligations in accordance with Section 7.02 and
each Rating Agency has confirmed that the assumption by the successor Servicer
or Special Servicer or Trustee will not result in a qualification (it being
understood that the possible down-grading of any Class or the placing of any
Class on "negative" credit watch shall constitute a qualification), withdrawal
or downgrading of any Class of Certificates.
SECTION 6.05. Rights of the Depositor in Respect of the Servicer and
the Special Servicer.
The Depositor may, but is not obligated to, enforce the obligations of
the 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
Servicer and the Special Servicer hereunder or exercise the rights of the
Servicer or Special Servicer, as applicable, hereunder; provided, however, that
the Servicer and the Special Servicer shall not be relieved of any of their
respective obligations hereunder by virtue of such performance by the Depositor
or its designee. The Depositor shall not have any responsibility or liability
for any action or failure to act by the Servicer or the Special Servicer and is
not obligated to supervise the performance of the Servicer or the Special
Servicer under this Agreement or otherwise.
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default; Servicer and Special Servicer
Termination.
(a) "Event of Default" wherever used herein, means any one of the
following events:
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(i) any failure by the Servicer to make any remittance required to
be made by the Servicer on the day and by the time such remittance is
required to be made under the terms of this Agreement; or
(ii) any failure by the Special Servicer to deposit into the REO
Account within one Business Day of the day such deposit is required to
be made, or to remit to the Servicer for deposit into the Certificate
Account any such remittance required to be made by the Special Servicer
on the day such remittance is required to be made under the terms of
this Agreement; or
(iii) any failure on the part of the Servicer or the Special
Servicer duly to observe or perform in any material respect any other
of the covenants or agreements on the part of the Servicer or the
Special Servicer contained in this Agreement which continues unremedied
for a period of 30 days (15 days in the case of a failure to pay the
premium for any insurance policy required to be maintained hereunder)
after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Servicer or the
Special Servicer, as the case may be, by any other party hereto, or to
the Servicer, the Special Servicer, the Depositor and the Trustee by
the Holders of Certificates of any Class evidencing, as to such Class,
Percentage Interests aggregating not less than 25%; provided, however,
that the Servicer shall pay interest to the Trustee on any amount not
timely remitted at the Reimbursement Rate from and including the day
such remittance was required to be made to, but not including, the day
on which such remittance was actually made; or
(iv) any breach on the part of the Servicer or the Special
Servicer of any representation or warranty contained in Section 3.23 or
Section 3.24, as applicable, which materially and adversely affects the
interests of any Class of Certificateholders and which continues
unremedied for a period of 30 days after the date on which notice of
such breach, requiring the same to be remedied, shall have been given
to the Servicer or the Special Servicer, as the case may be, by the
Depositor or the Trustee, or to the Servicer, the Special Servicer, the
Depositor and the Trustee by the Holders of Certificates of any Class
evidencing, as to such Class, Percentage Interests aggregating not less
than 25%; or
(v) 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 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
(vi) the Servicer or the Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or
relating to the Servicer or the Special Servicer or of or relating to
all or substantially all of its property; or
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(vii) the 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
(viii) the Trustee shall have received notice from either Rating
Agency that the continuation of the Servicer or Special Servicer, as
the case may be, has resulted, or would result, in and of itself, in a
downgrading, qualification (it being understood that the possible
down-grading of any Class or the placing of any Class on "negative"
credit watch shall constitute a qualification) or withdrawal of the
then-current rating on any Class of Certificates that are rated by such
Rating Agency if the Servicer or Special Servicer, as the case may be,
is not replaced or a Responsible Officer of the Trustee has actual
knowledge that the Servicer or Special Servicer, as the case may be,
has been removed from either Rating Agency's List of Approved
Servicers.
(b) If any Event of Default with respect to the Servicer or the Special
Servicer (in either case, for purposes of this Section 7.01(b), the "Defaulting
Party") shall occur and be continuing, then, and in each and every such case, so
long as such Event of Default shall not have been remedied, the Depositor or the
Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 51% of the Voting Rights, shall, terminate, by notice in
writing to the Defaulting Party, with a copy of such notice to the Depositor,
all of the rights and obligations of the Defaulting Party under this Agreement
and in and to the Mortgage Loans and the proceeds thereof; provided, however,
that the Defaulting Party shall be entitled to the payment of accrued and unpaid
compensation and reimbursement through the date of such termination as provided
for under this Agreement for services rendered and expenses incurred. From and
after the receipt by the Defaulting Party of such written notice, all authority
and power of the Defaulting Party under this Agreement, whether with respect to
the Certificates (other than as a Holder of any Certificate) or the Mortgage
Loans or otherwise, shall pass to and be vested in the Trustee pursuant to and
under this Section, and, without limitation, the Trustee is hereby authorized
and empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Servicer and 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 20 Business Days subsequent to its receipt of
the notice of termination) provide the Trustee with all documents and records
requested by it to enable it to assume the Servicer's or the Special Servicer's,
as the case may be, functions hereunder, and shall cooperate with the Trustee in
effecting the termination of the Servicer's or the Special Servicer's, as the
case may be, responsibilities and rights hereunder, including, without
limitation, the transfer within 5 Business Days to the Trustee for
administration by it of all cash amounts which shall at the time be or should
have been credited by the Servicer to the Certificate Account or any Servicing
Account (if it is the Defaulting Party) or by the Special Servicer to the REO
Account (if it is the Defaulting Party) or thereafter be received with respect
to the Mortgage Loans or any REO Property; provided, however, that the Servicer
and the Special Servicer each shall, if terminated
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pursuant to this Section 7.01(b) or in the case of the Special Servicer, if
terminated pursuant to Section 7.01(c) below, 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 (including, without limitation, the Special Servicer's
rights to receive and continue to receive accrued Workout Fees (until the date,
if any, upon which the Mortgage Loan again becomes a Defaulted Mortgage Loan)
whether in respect of Advances (in the case of the Servicer) or otherwise, and
it and its directors, officers, employees and agents shall continue to be
entitled to the benefits of Section 6.03 notwithstanding any such termination).
(c) The Holder or Holders of more than 50% of the aggregate Certificate
Balance of the then Controlling Class shall be entitled to terminate the rights
and obligations of the Special Servicer under this Agreement, with or without
cause, upon 10 Business Days' notice to the Special Servicer, the Servicer and
the Trustee, and to appoint a successor Special Servicer; provided, however,
that (i) such successor will meet the requirements set forth in Section 7.02 and
(ii) as evidenced in writing by each of the Rating Agencies, the proposed
successor of such Special Servicer will not, in and of itself, result in a
downgrading, withdrawal or qualification of the then current ratings provided by
the Rating Agencies in respect to any Class of then outstanding Certificates
that is rated (it being understood that the possible down-grading of any Class
or the placing of any Class on "negative" credit watch shall constitute a
qualification). No penalty or fee shall be payable to the Special Servicer with
respect to any termination pursuant to this Section 7.01(c).
(d) The Servicer and Special Servicer shall, from time to time, take
all such actions as are required by them in order to maintain their respective
status as an approved servicer and special servicer, as applicable and as
pertains to this transaction, with each of the Rating Agencies.
(e) In connection with (i) any failure by the Servicer to make any
remittance required to be made by the Servicer to the Certificate Account,
escrow account or either Distribution Account on the day and by the time such
remittance is required to be made under the terms of this Agreement, or (ii) any
failure by the Special Servicer to deposit into, or to remit to the Servicer for
deposit into, or the Servicer to make a required deposit into the Certificate
Account or the REO Account, or to deposit into, or to remit to the Trustee or
the Paying Agent for deposit into, the Lower-Tier Distribution Account any
amount required to be so deposited or remitted by the Servicer or the Special
Servicer, as the case may be, pursuant to, and at the time specified by, the
terms of this Agreement, the Servicer or Special Servicer, as appropriate, shall
pay to the Trustee for the account of the Trustee interest on any amount not
timely remitted at the Reimbursement Rate from and including the day such
remittances was required to be made to, but not including, the day on which such
remittance was actually made.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Servicer or the Special Servicer, as the case
may be, either resigns pursuant to the first sentence of Section 6.04 or
receives a notice of termination for cause pursuant to Section 7.01(a), and
provided that no acceptable successor has been appointed, the Trustee shall be
the successor to the Servicer or Special Servicer, as the case may be, in all
respects in its capacity as Servicer or Special Servicer under this Agreement
and the transactions set forth or provided for herein and shall be subject to
all the responsibilities, duties, liabilities and limitations on liability
relating thereto and that arise thereafter placed on or for the benefit of the
Servicer or Special Servicer by the terms and provisions hereof; provided,
however, that any
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failure to perform such duties or responsibilities caused by the terminated
party's failure under Section 7.01 to provide information or moneys required
hereunder shall not be considered a default by such successor hereunder. The
appointment of a successor Servicer shall not affect any liability of the
predecessor Servicer which may have arisen prior to its termination as Servicer,
and the appointment of a successor Special Servicer shall not affect any
liability of the predecessor Special Servicer which may have arisen prior to its
termination as Special Servicer. The Trustee in its capacity as successor to the
Servicer or the Special Servicer, as the case may be, shall not be liable for
any of the representations and warranties of the Servicer or the Special
Servicer, respectively, herein or in any related document or agreement, for any
acts or omissions of the predecessor Servicer or Special Servicer or for any
losses incurred by the Servicer pursuant to Section 3.06 hereunder, nor shall
the Trustee be required to purchase any Mortgage Loan hereunder. As compensation
therefor, the Trustee as successor Servicer shall be entitled to the Servicing
Fees and all fees relating to the Mortgage Loans which the Servicer would have
been entitled to if the Servicer had continued to act hereunder, including but
not limited to any income or other benefit from any Permitted Investment
pursuant to Section 3.06, and as successor to the Special Servicer shall be
entitled to the Special Servicing Fees to which the Special Servicer would have
been entitled if the Special Servicer had continued to act hereunder; provided,
however, that neither the Trustee nor any successor to the Servicer shall be
entitled to receive the Excess Fixed Yield. Should the Trustee succeed to the
capacity of the Servicer or the Special Servicer, the Trustee shall be afforded
the same standard of care and liability as the Servicer or the Special Servicer,
as applicable, hereunder notwithstanding anything in Section 8.01 to the
contrary, but only with respect to actions taken by it in its role as successor
Servicer or successor Special Servicer, as the case may be, and not with respect
to its role as Trustee hereunder. Notwithstanding the above, the Trustee may, if
it shall be unwilling to act as successor to the Servicer or Special Servicer,
or shall, if it is unable to so act, or if the Trustee is not approved as a
servicer or special servicer, as applicable, by each Rating Agency or if the
Holders of Certificates entitled to at least 51% of the Voting Rights so request
in writing to the Trustee, promptly appoint, or petition a court of competent
jurisdiction to appoint, any established mortgage loan servicing institution
which meets the criteria set forth in Section 6.04 and otherwise herein, as the
successor to the Servicer or the Special Servicer, as applicable, hereunder in
the assumption of all or any part of the responsibilities, duties or liabilities
of the Servicer or Special Servicer hereunder. No appointment of a successor to
the Servicer or the Special Servicer hereunder shall be effective (i) until each
of the Rating Agencies shall have confirmed in writing that its then-current
rating (if any) of each Class of Certificates will not be qualified, down-graded
or withdrawn by reason thereof and (ii) until the assumption in writing by the
successor to the Servicer or the Special Servicer of all its responsibilities,
duties and liabilities hereunder that arise thereafter. Pending appointment of a
successor to the Servicer or the Special Servicer hereunder, unless the Trustee
shall be prohibited by law from so acting, the Trustee shall act in such
capacity as herein above provided. In connection with such appointment and
assumption of a successor to the Servicer or Special Servicer as described
herein, the Trustee may make such arrangements for the compensation of such
successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation with respect to a successor
Servicer or successor Special Servicer, as the case may be, shall be in excess
of that permitted the terminated Servicer or Special Servicer, as the case may
be, hereunder exclusive of Excess Fixed Yield. The Trustee, the Servicer or the
Special Servicer (whichever is not the terminated party) and such successor
shall take such action, consistent with this Agreement, and shall be necessary
to effectuate any such succession. Any costs and expenses associated with the
transfer of the servicing function (other than with
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respect to a termination without cause) under this Agreement shall be borne by
the predecessor servicer.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Servicer or the Special Servicer
pursuant to Section 6.04, any termination of the Servicer or the Special
Servicer pursuant to Section 7.01 or any appointment of a successor to the
Servicer or the Special Servicer pursuant to Section 7.02, the Trustee shall
give prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of any
event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) 5 days after the Trustee would be deemed
to have notice of the occurrence of such an event in accordance with Section
8.02(vii), the Trustee shall transmit by mail to the Depositor and all
Certificateholders notice of such occurrence, unless such default shall have
been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders of Certificates representing at least 66 2/3% Rights
allocated to each Class of Certificates affected by any Event of Default
hereunder may waive such Event of Default within 20 days of the receipt of
notice from the Trustee of the occurrence of such Event of Default; provided,
however, that an Event of Default under clause (i) 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, and reimbursement to the Trustee of all
costs and expenses incurred by it in connection with such Event of Default and
prior to its waiver, 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 the same Voting
Rights with respect to the matters described above as they would if any other
Person held such Certificates.
SECTION 7.05. Trustee and Fiscal Agent as Makers of Advances.
(a) In the event that the Servicer fails to fulfill its obligations
hereunder to make any Advances, the Trustee shall perform such obligations (x)
within five Business Days of such failure by the Servicer with respect to
Servicing Advances to the extent a Responsible Officer of the Trustee has actual
knowledge of such failure with respect to such Servicing Advances and (y) by
11:00 a.m., Central time, on the Business Day next succeeding the related
Servicer Remittance Date with respect to P&I Advances. With respect to any such
Advance made by the Trustee, the Trustee shall succeed to all of the Servicer's
rights with respect to Advances hereunder, including, without limitation, the
Servicer's rights of reimbursement and interest on each Advance at the
Reimbursement Rate, and rights to determine that a proposed Advance is a
Nonrecoverable P&I Advance or Servicing Advance, as the case may be, (without
regard to any impairment of any such rights of reimbursement caused by such
Servicer's default in its obligations hereunder); provided, however, that if
Advances made by both the Trustee and the Servicer shall at any time be
outstanding, or any interest on any Advance shall be accrued and
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unpaid, all amounts available to repay such Advances and the interest thereon
hereunder shall be applied entirely to the Advances outstanding to the Trustee,
until such Advances shall have been repaid in full, together with all interest
accrued thereon, prior to reimbursement of the Servicer for such Advances. The
Trustee shall be entitled to conclusively rely on any notice given with respect
to a Nonrecoverable Advance hereunder. In the event the Fiscal Agent is not the
initial Fiscal Agent, with respect to any Distribution Date that the Trustee is
required to make any P&I Advances, immediately upon making such P&I Advances the
Trustee shall notify the Fiscal Agent by facsimile that such P&I Advances have
been made.
(b) In the event that the Trustee fails to fulfill its obligations
hereunder to make any Advances following the failure of the Servicer to make an
Advance, the Fiscal Agent shall perform such obligations (x) within one Business
Day of such failure by the Trustee with respect to Servicing Advances and (y) by
no later than the close of business, Central time, on the related Distribution
Date with respect to P&I Advances, and, with respect to any such Advance made by
the Fiscal Agent, the Fiscal Agent shall succeed to all of the Trustee's rights
with respect to any such Advance hereunder; provided, however, that if Advances
made by the Servicer, the Trustee and the Fiscal Agent shall at any time be
outstanding, or any interest on any Advance shall be accrued and unpaid, all
amounts available to repay such Advances and interest hereunder shall be applied
entirely to the Advances outstanding to the Fiscal Agent, until such Advances
shall have been repaid in full, together with all interest accrued thereon. The
Fiscal Agent shall be entitled to conclusively rely on any notice given with
respect to a Nonrecoverable Advance hereunder.
ARTICLE VIII
CONCERNING THE TRUSTEE AND FISCAL AGENT
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiving 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. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall request the party producing such instrument
to provide the Trustee with a corrected instrument and if not so corrected
within a reasonable period of time, the Trustee shall notify the
Certificateholders in writing. 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 Servicer or
the Special Servicer, and accepted by the Trustee in good faith, pursuant to
this Agreement.
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(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and,
in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Agreement;
(ii) The Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) The Trustee shall not be 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 (unless a higher percentage of Voting Rights is required for
such action).
SECTION 8.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 8.01:
(i) The Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
Appraisal, bond or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(ii) The Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance therewith;
(iii) The Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such
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Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby; the Trustee shall not be required
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it; nothing contained herein shall, however, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default 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 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 50% 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. The reasonable expense of every such
reasonable examination shall be paid by the Servicer or, if paid by the
Trustee, shall be repaid by the Servicer upon demand;
(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 appointment of such agents or
attorneys shall not relieve the Trustee of its duties or obligations
hereunder;
(vii) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office, and such notice references the
Certificates or this Agreement; and
(viii) The Trustee shall not be responsible for any act or
omission of the Servicer or the Special Servicer (unless the Trustee is
acting as Servicer or Special Servicer, as the case may be) or of the
Depositor.
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SECTION 8.03. Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans.
Neither the Trustee nor the Fiscal Agent makes any representations as
to the validity or sufficiency of this Agreement or of any Certificate (other
than as to the signature, if any, of the Trustee set forth thereon) or of any
Mortgage Loan or related document. Neither the Trustee nor the Fiscal Agent
shall 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 Servicer or the Special Servicer. Neither the Trustee nor the
Fiscal Agent shall be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Servicer or the Special Servicer, and accepted
by the Trustee or the Fiscal Agent, as applicable, in good faith, pursuant to
this Agreement.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
Each of the Trustee and the Fiscal Agent in its individual capacity,
not as Trustee or Fiscal Agent, may become the owner or pledgee of Certificates,
and may deal with the Depositor, the Servicer, the Special Servicer, the Initial
Purchasers and the Underwriters in banking transactions, with the same rights it
would have if it were not Trustee or the Fiscal Agent, as applicable.
SECTION 8.05. Payment of Trustee's Fees; Indemnification of Trustee and
Fiscal Agent.
(a) The Servicer covenants and agrees to pay to the Trustee or any
successor Trustee from time to time, and the Trustee or any successor Trustee
shall be entitled to receive from the Servicer 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). The Trustee Fee shall be the fee specified in that certain
letter agreement dated as of June 1, 1999, between the Servicer and the Trustee.
If the Trustee Fee is not paid by the Servicer on any date as specified in such
letter, such unpaid Trustee Fee shall be paid out of the Lower-Tier Distribution
Account. Other than such Trustee Fee, the Servicer shall not be required to
reimburse the Trustee for any cost or expense incurred in connection with the
Trustee's performance of its obligations hereunder. The Trustee Fee and other
costs identified in such letter agreements shall constitute the Trustee's sole
compensation for the services to be rendered by it hereunder.
(b) The Trustee, the Fiscal Agent and any director, officer, employee,
agent and Control Person of the Trustee or the Fiscal Agent shall be entitled to
be indemnified and held harmless by the Trust Fund (to the extent of amounts on
deposit in the Lower-Tier Distribution Account from time to time) against any
loss, liability or expense (including, without limitation, costs and expenses of
litigation, and of investigation, counsel fees, damages, judgments and amounts
paid in settlement, and expenses incurred in becoming successor servicer, to the
extent not otherwise paid hereunder) arising out of, or incurred in connection
with, any act or omission of the Trustee or the Fiscal Agent, as applicable,
relating to the exercise and performance of any of the powers and duties of the
Trustee or the Fiscal Agent, as applicable, hereunder; provided, however, that
neither the Trustee, the Fiscal Agent nor any of the other above specified
Persons
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shall be entitled to indemnification pursuant to this Section 8.05(b) for (i)
allocable overhead, (ii) expenses or disbursements incurred or made by or on
behalf of the Trustee or the Fiscal Agent, as applicable, in the normal course
of the Trustee's performing its duties in accordance with any of the provisions
hereof, which are not "unanticipated expenses of the REMIC" within the meaning
of Treasury Regulations Section 1.860G-l(b)(3)(ii), (iii) any expense or
liability specifically required to be borne thereby pursuant to the terms hereof
or (iv) any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of the Trustee's or the
Fiscal Agent's obligations and duties hereunder, or by reason of negligent
disregard of such obligations or duties, or as may arise from a breach of any
representation, warranty or covenant of the Trustee or the Fiscal Agent made
herein. The provisions of this Section 8.05(b) shall survive any resignation or
removal of the Trustee and/or Fiscal Agent and appointment of a successor
thereto.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be, and will be required to
resign if it fails to be, (i) a corporation, national bank, national banking
association or a trust company, organized and doing business under the laws of
any state or the United States of America, authorized under such laws to
exercise corporate trust powers and to accept the trust conferred under this
Agreement, having a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority and shall
not be an Affiliate of the Servicer or the Special Servicer (except during any
period when the Trustee is acting as, or has become successor to, the Servicer
or the Special Servicer, as the case may be, pursuant to Section 7.02), (ii) an
institution insured by the Federal Deposit Insurance Corporation and (iii) an
institution (a) whose long-term senior unsecured debt (or that of its fiscal
agent) is rated not less than "Aa2" by Moody's (or such lower rating as would
not result, as confirmed in writing by Moody's, in a qualification, downgrade or
withdrawal of any of the then current ratings assigned by Moody's to the
Certificates) and (b) whose structured finance rating (or that of its fiscal
agent) or whose long-term senior unsecured debt rating (or that of its fiscal
agent) is rated not less than "AA" or its equivalent by Fitch IBCA (or such
lower rating as would not result, as confirmed in writing by Fitch IBCA, in a
qualification, downgrade or withdrawal of any of the then current ratings
assigned by Fitch IBCA to the Certificates).
If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
national bank or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In the event the place of business from which the Trustee administers
the Upper-Tier REMIC and the Lower-Tier REMIC is in a state or local
jurisdiction that imposes a tax on the Trust Fund on the net income of a REMIC
(other than a tax corresponding to a tax imposed under the REMIC Provisions),
the Trustee shall elect either to (i) resign immediately in the manner and with
the effect specified in Section 8.07, (ii) pay such tax at no expense to the
Trust or (iii) administer the Upper-Tier REMIC and the Lower-Tier REMIC from a
state and local jurisdiction that does not impose such a tax.
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SECTION 8.07. Resignation and Removal of the Trustee and the Fiscal
Agent.
(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
Servicer, the Special Servicer and to all Certificateholders. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a successor
trustee acceptable to the Servicer by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee and to the successor
trustee. A copy of such instrument shall be delivered to the Servicer, the
Special Servicer and the Certificateholders by the Depositor. If no successor
trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Depositor or the Servicer, or if at any time the Trustee
shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or
a receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Depositor may remove the Trustee and appoint a successor trustee acceptable to
the Servicer by written instrument, in duplicate, which instrument shall be
delivered to the Trustee so removed and to the successor trustee. A copy of such
instrument shall be delivered to the 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 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 Servicer, one complete set to the Trustee so removed
and one complete set to the successor so appointed. A copy of such instrument
shall be delivered to the Depositor, the Special Servicer and the remaining
Certificateholders by the Servicer.
(d) Subject to the succeeding sentence and the last sentence of the
last paragraph of this Section 8.07(d), the Fiscal Agent shall not be entitled
to resign, except under a determination that it may no longer perform its
obligations and duties under applicable law or such obligations and duties are
in material conflict by reason of applicable law with any other activities
carried on by it or a Fiscal Agent is no longer required by the Rating Agencies
to maintain the then-current ratings of the Certificates. Any such determination
is required to be evidenced by an Opinion of Counsel or a written notification
from the Rating Agencies to such effect delivered to the Depositor and the
Trustee. The Fiscal Agent may also resign from its obligations and duties under
this Agreement at any time upon reasonable notice to the Trustee, provided that
(i) a successor fiscal agent is willing to assume the obligations,
responsibilities, and covenants to be performed by the Fiscal Agent on
substantially the same terms and conditions, and for not more than equivalent
compensation, (ii) the Fiscal Agent bears all costs associated with such
resignation, (iii) the successor fiscal agent has a long term debt rating of at
least (1) "Aa2" from Moody's and (2) "AA" from Fitch IBCA or has a structured
finance rating by Fitch IBCA of "AA" or, as confirmed in writing by each Rating
Agency, is an entity that in and of itself would not result in a downgrading,
withdrawal or qualification of any rating of any then-rated Certificate, (iv)
the successor fiscal agent is approved by the Depositor and the
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Trustee and (v) the Rating Agencies shall have confirmed in writing that the
appointment of such successor fiscal agent will not adversely affect or result
in a withdrawal, downgrading, or qualification of the ratings on the
Certificates that are then-rated.
Upon any resignation or removal of the Fiscal Agent, the Trustee will
be required to designate a successor Fiscal Agent whose appointment will not
adversely affect the ratings on the Certificates then rated, unless (i) there is
a successor Fiscal Agent already provided for in accordance with the proviso to
the last sentence of the preceding paragraph in this Section 8.07(d) or (ii) the
long-term senior unsecured debt of the Trustee is rated (a) "Aa2" by Moody's and
(b) "AA" by Fitch IBCA or has a structured finance rating by Fitch IBCA of
"AA"(or such other rating by either Rating Agency as would not, as evidenced in
writing by such Rating Agency, adversely affect any of the ratings then assigned
thereby to the Certificates).
Any resignation or removal of the Trustee and the Fiscal Agent and
appointment of a successor Trustee and Fiscal Agent pursuant to any of the
provisions of this Section 8.07 shall not become effective until acceptance of
appointment by the successor Trustee and Fiscal Agent as provided in Section
8.08 and confirmation in writing by each Rating Agency that the appointment of
such successor Trustee or Fiscal Agent will not in and of itself result in the
qualification, withdrawal or downgrading of any rating assigned to any Class of
Certificates, except that the resignation or removal of the Fiscal Agent shall
become effective immediately if, at the time of such resignation or removal, the
long-term senior unsecured debt of the Trustee is rated (i) "Aa2" by Moody's and
(ii) "AA" by Fitch or have a structured finance rating by Fitch of AA (or such
other rating by either Rating Agency as would not, as evidenced in writing by
such Rating Agency, adversely affect any of the ratings then assigned thereby to
the Certificates).
Upon any succession of the Trustee under this Agreement, the
predecessor Trustee shall be entitled to the payment of accrued and unpaid
compensation and reimbursement as provided for under this Agreement for services
rendered, Advances made and expenses incurred. No Trustee or Fiscal Agent shall
be personally liable for any action or omission of any successor Trustee or
successor Fiscal Agent. Notwithstanding anything to the contrary herein, the
resignation or removal of the initial Trustee shall automatically result in the
simultaneous resignation or removal of the initial Fiscal Agent.
SECTION 8.08. Successor Trustee and Fiscal Agent.
(a) Any successor Trustee or Fiscal Agent appointed as provided in
Section 8.07 shall execute, acknowledge and deliver to the Depositor, the
Servicer, the Special Servicer and to its predecessor Trustee or Fiscal Agent,
as applicable, an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor Trustee or Fiscal Agent, as
applicable, shall become effective and such successor Trustee or Fiscal Agent,
as applicable, 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 or Fiscal
Agent 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 Custodian, which
Custodian shall become the agent of the successor Trustee), and the Depositor,
the Servicer, the Special Servicer and the predecessor Trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
to more fully and certainly vest and confirm in the successor Trustee all
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such rights, powers, duties and obligations, and to enable the successor Trustee
to perform its obligations hereunder.
(b) No successor Trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor Trustee or Fiscal
Agent as provided in this Section 8.08, the Servicer shall mail notice of the
succession of such Trustee or Fiscal Agent hereunder to the Depositor and the
Certificateholders. If the Servicer fails to mail such notice within 10 days
after acceptance of appointment by the successor Trustee or Fiscal Agent, such
successor Trustee or Fiscal Agent, as applicable, shall cause such notice to be
mailed at the expense of the Servicer.
SECTION 8.09. Merger or Consolidation of Trustee or Fiscal Agent.
Any Person into which the Trustee or the Fiscal 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 the Trustee or the Fiscal Agent
shall be a party, or any Person succeeding to all or substantially all of the
corporate trust business of the Trustee or the Fiscal Agent, shall be the
successor of the Trustee or the Fiscal Agent, respectively, hereunder; provided,
that, in the case of the Trustee, such successor Person shall be eligible under
the provisions of Section 8.06, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. The Trustee or the Fiscal Agent, as the case may be,
will provide notice of such event to the Servicer, the Special Servicer, the
Depositor and the Rating Agencies.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee
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
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 Servicer and
the Trustee may consider necessary or desirable. If the 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 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.
(a) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10, all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in
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which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the 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.
(b) 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.
(c) Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
(d) 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; provided, however, that the Trustee shall have no liability for the
actions of a co-trustee or a separate trustee not within the express authority
of such co-trustee or separate trustee.
SECTION 8.11. Exercise of Trustee Powers by Certificateholders
No Certificateholder shall have any right under this Agreement to
institute any proceeding with respect to the Certificates or this Agreement or
exercise any remedy available to the Trustee unless (i) such Certificateholder
has provided the Trustee with written notice of default and the continuance
thereof and (ii) the Certificateholders of any Class evidencing not less than
25% of the aggregate percentage interests constituting such Class have made
written request to the Trustee to institute such proceeding in its own name (as
Trustee hereunder) and have offered the Trustee reasonable indemnity, and the
Trustee, 60 days after receipt of such request and indemnity, has neglected or
refused to institute any such proceeding; provided, however, that, the Trustee
is not obligated to exercise any of the trusts or powers vested in it by this
Agreement or to institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any of the
Certificateholders, unless such Certificateholders have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby.
SECTION 8.12. Appointment of Custodians.
LaSalle Bank National Association, is hereby appointed as Custodian to
hold all or a portion of the Mortgage Files as agent for the Trustee. Each
subsequently appointed
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Custodian shall be a depository institution subject to supervision by federal or
state authority, shall have combined capital and surplus of at least $15,000,000
and shall be qualified to do business in the jurisdiction in which it holds any
Mortgage File and shall not be the Depositor or any Affiliate of the Depositor.
Each subsequently appointed Custodian must be acceptable to each Rating Agency,
as confirmed in writing. Each Custodian shall be subject to the same obligations
and standard of care as would be imposed on the Trustee hereunder in connection
with the retention of Mortgage Files directly by the Trustee. The appointment of
one or more Custodians shall not relieve the Trustee from any of its obligations
hereunder, and the Trustee shall remain responsible for all acts and omissions
of any Custodian. Any Custodian appointed hereunder must maintain a fidelity
bond and errors and omissions policy in an amount customary for Custodians which
serve in such capacity in commercial mortgage loan securitization transactions.
SECTION 8.13. Access to Certain Information.
(a) On or prior to the date of the first sale of any Non-Public
Certificate to an Independent third party, the Depositor shall provide to the
Trustee a copy of any private placement memorandum or other disclosure document
used by the Depositor or its Affiliate in connection with the offer and sale of
the Class of Certificates to which such Non-Public Certificate relates. In
addition, if any such private placement memorandum or disclosure document is
revised, amended or supplemented at any time following the delivery thereof to
the Trustee, the Depositor promptly shall inform the Trustee of such event and
shall deliver to the Trustee a copy of the private placement memorandum or
disclosure document, as revised, amended or supplemented. The Trustee shall
maintain at its offices primarily responsible for administering the Trust Fund
and shall, upon reasonable advance notice, make available during normal business
hours for review by any Holder of a Certificate, the Depositor, the Servicer,
the Special Servicer, any Rating Agency or any other Person to whom the Trustee
believes such disclosure is appropriate, originals or copies of the following
items: (i) in the case of a Holder or prospective transferee of a Non-Public
Certificate, any private placement memorandum or other disclosure document
relating to the Class of Certificates to which such Non-Public Certificate
belongs, in the form most recently provided to the Trustee and (ii) in all
cases, (a) this Agreement and any amendments hereto entered into pursuant to
Section 11.01, (b) all statements required to be delivered to Certificateholders
of the relevant Class pursuant to Section 4.02 since the Closing Date, (c) all
Officer's Certificates delivered to the Trustee since the Closing Date pursuant
to Section 3.13, (d) all accountants' reports delivered to the Trustee since the
Closing Date pursuant to Section 3.14, (e) any inspection report prepared by the
Servicer, Sub-Servicer or Special Servicer, as applicable, and delivered to the
Trustee and Servicer in respect of each Mortgaged Property pursuant to Section
3.12(a), (f) as to each Mortgage Loan pursuant to which the related Mortgagor is
required to deliver such items or the Special Servicer has otherwise acquired
such items, the most recent annual operating statement and rent roll of the
related Mortgaged Property and financial statements of the related Mortgagor and
any other reports of the Mortgagor collected by the Servicer, Sub-Servicer or
Special Servicer, as applicable, and delivered to the Trustee pursuant to
Section 3.12(b), together with the accompanying written reports to be prepared
by the Special Servicer and delivered to the Trustee pursuant to Section
3.12(b), (g) any and all notices, reports and Environmental Assessments
delivered to the Trustee with respect to any Mortgaged Property securing a
Defaulted Mortgage Loan as to which the environmental testing contemplated by
Section 3.09(c) revealed that either of the conditions set forth in clauses (i)
and (ii) of the first sentence thereof was not satisfied (but only for so long
as
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such Mortgaged Property or the related Mortgage Loan are part of the Trust
Fund), (h) any and all modifications, waivers and amendments of the terms of a
Mortgage Loan entered into by the Servicer or the Special Servicer and delivered
to the Trustee pursuant to Section 3.20 (but only for so long as the affected
Mortgage Loan is part of the Trust Fund), (i) any and all Officer's Certificates
delivered to the Trustee to support the Servicer's determination that any P&I
Advance or Servicing Advance was or, if made, would be a Nonrecoverable P&I
Advance or Nonrecoverable Servicing Advance, as the case may be, (j) any and all
of the Mortgage Loan documents contained in the Mortgage File and delivered to
the Trustee, (k) any and all Appraisals obtained pursuant to the definition of
"Appraisal Reduction" herein and delivered to the Trustee, (l) information
regarding the occurrence of Servicing Transfer Events as to the Mortgage Loans
and delivered to the Trustee and (m) any and all Sub-Servicing Agreements and
any amendments thereto and modifications thereof and delivered to the Trustee.
Copies of any and all of the foregoing items will be available from the Trustee
upon request; provided, however, that the Trustee shall be permitted to require
payment of a sum sufficient to cover the reasonable costs and expenses of
providing such copies, except in the case of copies provided to the Rating
Agencies, which shall be free of charge to the Rating Agencies. In addition,
without limiting the generality of the foregoing, any Class E, Class F, Class G,
Class H and Class I Certificateholder may upon request obtain from the Trustee a
copy of any factual report (other than the Asset Status Report) delivered to the
Rating Agencies by the Trustee under this Agreement.
(b) [Reserved.]
(c) Notwithstanding anything to the contrary herein, in addition to the
reports and information made available and distributed pursuant to the terms of
this Agreement (including the information set forth in Section 8.13(a)), the
Trustee shall, in accordance with such reasonable rules and procedures as it may
adopt (which may include the requirement that an agreement that provides that
such information shall be used solely for purposes of evaluating the investment
characteristics of the Certificates be executed), also make available the
reports available to Certificateholders pursuant to Section 4.02, as well as
certain additional information received by the Trustee to any Certificateholder,
the Underwriters, the Initial Purchasers, any Certificate Owner or any
prospective investor identified as such by a Certificate Owner or Underwriter,
that requests such reports or information; provided, however, that the Servicer
or the Trustee, as the case may be, shall be permitted to require payment of a
sum sufficient to cover the reasonable costs and expenses of providing copies of
such reports or information.
(d) With respect to any information furnished by the Trustee or the
Servicer pursuant to this Section 8.12, the Trustee or Servicer, as the case may
be, shall be entitled to indicate the source of such information and the Trustee
or Servicer, as applicable, may affix thereto any disclaimer it deems
appropriate in its discretion. The Trustee or the Servicer, as applicable, shall
notify Certificateholders of the availability of any such information in any
manner as it, in its sole discretion, may determine. In connection with
providing access to or copies of the items described in the preceding paragraph,
the Trustee or the Servicer, as the case may be, may require (a) in the case of
Certificate Owners, a confirmation executed by the requesting Person
substantially in form and substance reasonably acceptable to the Servicer or
Trustee, as applicable, generally to the effect that such Person is a beneficial
holder of Certificates, is requesting the information solely for use in
evaluating such Person's investment in the Certificates and will otherwise keep
such information confidential and (b) in the case of a prospective purchaser,
confirmation executed by the requesting Person in form and substance
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reasonably acceptable to the Trustee or the Servicer, as the case may be,
generally to the effect that such Person is a prospective purchaser of a
Certificate or an interest therein, is requesting the information solely for use
in evaluating a possible investment in Certificates and will otherwise keep such
information confidential. Neither the Servicer nor the Trustee shall be liable
for the dissemination of information in accordance with this Agreement.
SECTION 8.14. Representations and Warranties of the Trustee and the
Fiscal Agent.
(a) The Trustee hereby represents and warrants to the Depositor, the
Servicer and the Special Servicer and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The Trustee is a banking association chartered under the laws
of the United States of America, duly organized, validly existing and
in good standing under the laws thereof;
(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 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 Trustee 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 Trustee, enforceable against the
Trustee 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 the rights
of creditors of national banking associations specifically 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 which would prohibit the
Trustee from entering into this Agreement or, in the Trustee's good
faith and reasonable judgment, is
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likely to materially and adversely affect the ability of the
Trustee to perform its obligations under this Agreement; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order
which has not been obtained or cannot be obtained prior to the actual
performance by the Trustee of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on
the ability of the Trustee to perform its obligations hereunder.
(viii) The Trustee represents that it will use reasonable
commercial efforts to cure (by August 1999) any deficiencies with
regards to the manipulation or calculation of dates beyond December 31,
1999, in the internally maintained computer software systems used by
the Trustee in the conduct of trust business which would materially and
adversely affect its ability to perform its obligations under this
Agreement. The Trustee further represents that it will use reasonable
commercial efforts to obtain reasonable assurances from each third
party vendor of licensed computer software systems used by the Trustee
in the conduct of its trust business that such vendors shall use
reasonable commercial efforts to cure any deficiencies with regards to
the manipulation or calculation of dates beyond December 31, 1999, in
such systems which would materially and adversely affect the ability of
the Trustee to perform its obligations under this Agreement.
(b) The representations and warranties set forth in paragraph (a) above
shall survive the execution and delivery of the Agreement and exist for the life
of the Trust. The Trustee shall indemnify the Servicer, the Special Servicer,
the Fiscal Agent and the Trust Fund and hold each of them harmless against any
losses, damages, penalties, fines, forfeitures, and legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion arising from, or resulting from a material breach of the
Trustee's representations and warranties contained in paragraph (a) above. Such
indemnification shall survive any termination or resignation of the Trustee, and
any termination of the Agreement.
(c) The Fiscal Agent hereby represents and warrants to the Depositor,
the Servicer and the Special Servicer and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Fiscal Agent is a foreign banking corporation, duly
organized, validly existing and in good standing under the laws
governing its creation;
(ii) The execution and delivery of this Agreement by the Fiscal
Agent, and the performance and compliance with the terms of this
Agreement by the Fiscal Agent, will not violate the Fiscal Agent's
organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any
of its assets;
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(iii) The Fiscal Agent 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 Fiscal Agent, enforceable against
the Fiscal Agent 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 the
rights of creditors of national banking associations specifically and
(b) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(v) The Fiscal Agent 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 Fiscal Agent's good faith and
reasonable judgment, is likely to affect materially and adversely
either the ability of the Fiscal Agent to perform its obligations under
this Agreement or the financial condition of the Fiscal Agent;
(vi) No litigation is pending or, to the best of the Fiscal
Agent's knowledge, threatened against the Fiscal Agent which would
prohibit the Fiscal Agent from entering into this Agreement or, in the
Fiscal Agent's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Fiscal Agent
to perform its obligations under this Agreement or the financial
condition of the Fiscal Agent; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Fiscal Agent, or compliance by the Fiscal Agent
with, this Agreement or the consummation of the transactions
contemplated by this Agreement, except for any consent, approval,
authorization or order which has not been obtained or cannot be
obtained prior to the actual performance by the Fiscal Agent of its
obligations under this Agreement, and which, if not obtained would not
have a materially adverse effect on the ability of the Fiscal Agent to
perform its obligations hereunder.
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 Servicer, the
Special Servicer and the
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Trustee shall terminate upon payment (or provision for payment) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required hereunder to be so paid on the Distribution Date following the earlier
to occur of (i) the purchase by the Servicer, the Special Servicer, the
Controlling Class Certificateholder holding the largest Certificate Balance of
the Controlling Class or the Holders of the Class LR Certificates, as described
below, of all the Mortgage Loans and each REO Property remaining in the Trust
Fund at a price equal to (a) the sum of (1) the aggregate Purchase Price of all
the Mortgage Loans (exclusive of REO Loans) included in the Trust Fund and (2)
the Appraised Value of each REO Property, if any, included in the Trust Fund
(such Appraisals in clause (a)(2) to be conducted by an Independent Appraiser
selected and mutually agreed upon by the Servicer and the Trustee, and approved
by more than 50% of the Voting Rights of the Classes of Certificates then
outstanding (other than the Controlling Class unless the Controlling Class is
the only Class of Certificates then outstanding)), minus (b) solely in the case
where the Servicer is effecting such purchase, the aggregate amount of
unreimbursed Advances made by the Servicer, together with any interest accrued
and payable to the Servicer in respect of such Advances in accordance with
Sections 3.03(d) and 4.03(d) and any unpaid Servicing Fees (but not including
the portion thereof payable to the Trustee) and any unpaid Excess Fixed Yield,
remaining outstanding (which items shall be deemed to have been paid or
reimbursed to the Servicer in connection with such purchase) and (c) solely in
the case where the Special Servicer is effecting such purchase, any unpaid
Special Servicing Fees remaining outstanding (which items shall be deemed to
have been paid or reimbursed to the Special Servicer in connection with such
purchase) and (ii) the final payment or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan or REO Property remaining in the
Trust Fund; provided, however, that in no event shall the trust created hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Joseph P. Kennedy, the late ambassador of the United
States to the Court of St. James', living on the date hereof.
The Servicer may, at its option, elect to purchase all of the Mortgage
Loans and each REO Property remaining in the Trust Fund as contemplated by
clause (i) of the preceding paragraph by giving written notice to the Trustee
and the other parties hereto no later than 60 days prior to the anticipated date
of purchase; provided, however, that the Servicer may so elect to purchase all
of the Mortgage Loans and each REO Property remaining in the Trust Fund only on
or after the first Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
less than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage
Loans set forth in the Preliminary Statement. In the event that the Servicer
does not exercise such purchase option within 10 Business Days of such
Distribution Date, then the Special Servicer may purchase all of the Mortgage
Loans and REO Properties. If the Mortgage Loans and REO Properties are not
purchased by the Servicer or the Special Servicer pursuant to their respective
options, then the Controlling Class Certificateholder holding the largest
Certificate Balance of the Controlling Class, and the Holder of the majority
interest of the Class LR Certificates, in that order, may purchase all of the
Mortgage Loans and REO Properties then included in the Trust Fund.
In the event that the Servicer, the Special Servicer, the Controlling
Class Certificateholder holding the largest Certificate Balance of the
Controlling Class or the Holder of the majority interest of the Class LR
Certificates purchase any of the Mortgage Loans and each REO Property remaining
in the Trust Fund in accordance with the this Section 9.01, the Servicer, the
Special Servicer, the Controlling Class Certificate holder holding the largest
Certificate
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Balance of the Controlling Class or the Holder of the majority interest of the
Class LR Certificates, as applicable, shall deposit in the Lower-Tier
Distribution Account not later than the Servicer Remittance Date relating to the
Distribution Date on which the final distribution on the Certificates is to
occur, an amount in immediately available funds equal to the above-described
purchase price, which portion shall be deposited in the Certificate Account). In
addition, the Servicer shall transfer to the Lower-Tier Distribution Account all
amounts required to be transferred thereto on such Servicer Remittance Date from
the Certificate Account pursuant to the first paragraph of Section 3.04(c),
together with any other amounts on deposit in the Certificate Account that would
otherwise be held for future distribution.
Upon confirmation that such final deposits have been made and receipt
of an Opinion of Counsel (which Opinion of Counsel shall be obtained by and at
the expense of the party causing such liquidation and shall in no event be an
expense of the Trustee) to the effect that the resulting liquidation will be a
"qualified liquidation" within Section 860F(a)(4) of the Code, the Trustee shall
release or cause to be released to the Servicer, the Special Servicer or the
Holders of the Class LR Certificates, as applicable, the Mortgage Files for the
remaining Mortgage Loans to the respective purchasers thereof and shall execute
all assignments, endorsements and other instruments furnished to it by the
Servicer, the Special Servicer or the Holders of the Class LR Certificates, as
applicable, as shall be necessary to effectuate transfer of the Mortgage Loans
and REO Properties remaining in the Trust Fund to the respective purchasers
thereof.
Notice of any termination pursuant to this Section 9.01 shall be given
promptly by the Trustee by letter to Certificateholders and each Rating Agency
and, if not previously notified pursuant to this Section 9.01, to the other
parties hereto mailed (a) in the event such notice is given in connection with
the purchase of all of the Mortgage Loans and each REO Property remaining in the
Trust Fund, as promptly as possible following its receipt of notice of deposit
of the Purchase Price into the Certificate Account, or (b) otherwise during the
month of such final distribution on or before the P&I Advance 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.
After transferring the Lower-Tier Distribution Amount and the amount of
any Prepayment Premiums and Yield Maintenance Charges distributable pursuant to
Section 4.01(d) to the Upper-Tier Distribution Account pursuant to Section
3.04(c) and upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the amounts then on
deposit in the Upper-Tier Distribution Account that are allocable to payments on
the Class of Certificates so presented and surrendered. Amounts transferred from
the Lower-Tier Distribution Account or the Excess Interest Account to the
Upper-Tier Distribution Account as of the final Distribution Date shall be
allocated for the purposes, in the amounts and in accordance with the priority
set forth in Sections 4.01(a) and 4.01(e) and shall be distributed in
termination and liquidation of the Uncertificated Lower-Tier Interests and the
Class LR Certificates in accordance with Sections 4.01(b) and (d). Any funds not
distributed on such Distribution Date shall be set aside and held uninvested in
trust for the benefit of Certificateholders not presenting and surrendering
their
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Certificates in the aforesaid manner and shall be disposed of in accordance with
this Section 9.01 and Section 4.01(h).
SECTION 9.02. Additional Termination Requirements.
In the event the Servicer, the Special Servicer or the Holders of the
Class LR Certificates purchases all of the Mortgage Loans and each REO Property
remaining in the Trust Fund as provided in Section 9.01, the Trust Fund shall be
terminated in accordance with the following additional requirements, which are
intended to meet the definition of a "qualified liquidation" in Section
860F(a)(4) of the Code:
(i) the Trustee shall specify the date of adoption of the plan of
complete liquidation (which shall be the date of mailing of the notice
specified in Section 9.01) in a statement attached to each of the
Upper-Tier REMIC's and the Lower-Tier REMIC's final Tax Return pursuant
to Treasury Regulations, Section 1.860F-1 and shall be prepared by the
Servicer and shall satisfy all requirements of a qualified liquidation
under Section 860F of the Code and any regulations thereunder as are
specified in the Opinion of Counsel delivered pursuant to Section 9.01;
(ii) during such 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the
Trustee shall sell all of the assets of the Trust Fund to the Servicer,
the Special Servicer, the Controlling Class Certificateholders or the
Holders of the Class LR Certificates, as applicable, for cash; and
(iii) immediately following the making of the final payment on the
Uncertificated Lower-Tier Interests and the Certificates, the Trustee
shall distribute or credit, or cause to be distributed or credited, to
the Holders of the Class LR Certificates (in the case of the Lower-Tier
REMIC) and the Class R Certificates (in the case of the Upper-Tier
REMIC) all cash on hand (other than cash retained to meet claims), and
the Trust Fund and each of the Lower-Tier REMIC and the Upper-Tier
REMIC shall terminate at that time.
ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The Trustee shall make elections to treat each of the Lower-Tier
REMIC and the Upper-Tier REMIC 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 tax return for the taxable year ending on the last day of
the calendar year in which the Uncertificated Lower-Tier Interests and the
Certificates are issued. For the purposes of the REMIC election in respect of
the Upper-Tier REMIC, each Class of the Regular Certificates shall be designated
as the "regular interests" and the Class R Certificates shall be designated as
the sole class of "residual interests" in the Upper-Tier REMIC. For purposes of
the REMIC election in respect of the Lower-Tier REMIC, each Class of
Uncertificated Lower-Tier Interests shall be designated as the "regular
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interests" and the Class LR Certificates shall be designated as the sole class
of "residual interests" in the Lower-Tier REMIC. None of the Special Servicer,
the Servicer and the Trustee shall permit the creation of any "interests"
(within the meaning of Section 860G of the Code) in the Lower-Tier REMIC or the
Upper-Tier REMIC other than the foregoing interests.
(b) The Closing Date is hereby designated as the "startup day" of each
of the Lower-Tier REMIC and the Upper-Tier REMIC within the meaning of Section
860G(a)(9) of the Code.
(c) The Trustee shall act on behalf of each REMIC in relation to any
tax matter or controversy involving either REMIC and shall represent each REMIC
in any administrative or judicial proceeding relating to an examination or audit
by any governmental taxing authority with respect thereto. The legal expenses,
including without limitation attorneys' or accountants' fees, and costs of any
such proceeding and any liability resulting therefrom shall be expenses of the
Trust Fund and the Trustee shall be entitled to reimbursement therefor out of
amounts attributable to the Mortgage Loans and any REO Properties on deposit in
the Certificate Account as provided by Section 3.05(a) unless such legal
expenses and costs are incurred by reason of the Trustee's willful misfeasance,
bad faith or negligence. The Holder of the largest Percentage Interest in each
of the Class R and Class LR Certificates shall be designated, in the manner
provided under Treasury Regulations Section 1.860F-4(d) and temporary Treasury
Regulations Section 301.6231(a)(7)-1T, as the "tax matters person" of the
Upper-Tier REMIC and the Lower-Tier REMIC, respectively. By their acceptance
thereof, the Holders of the largest Percentage Interest in each of the Class R
and Class LR Certificates hereby agrees to irrevocably appoint the Trustee as
their agent to perform all of the duties of the "tax matters person" for
Upper-Tier REMIC and the Lower-Tier REMIC, respectively.
(d) The Trustee shall prepare or cause to be prepared and shall file,
or cause to be filed, all of the Tax Returns that it determines are required
with respect to each of the Lower-Tier REMIC and the Upper-Tier REMIC created
hereunder and shall sign such Tax Returns in a timely manner. The expenses of
preparing such returns shall be borne by the Trustee.
(e) The Trustee shall provide or cause to be provided (i) to any
Transferor of a Class R Certificate or Class LR Certificate such information as
is necessary for the application of any tax relating to the transfer of such
Class R Certificate or Class LR Certificate to any Person who is a Disqualified
Organization, or in the case of a Transfer to an Agent thereof, to such Agent
and shall forward to the Certificateholders such information or reports as are
required by the Code or the REMIC Provisions including reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption) and (ii) to the Internal Revenue Service on Form 8811 the
name, title, address and telephone number of the "tax matters person" who will
serve as the representative of each of the Lower-Tier REMIC and the Upper-Tier
REMIC created hereunder.
(f) The Trustee shall take such actions and shall cause the Trust Fund
to take such actions as are reasonably within the Trustee's control and the
scope of its duties more specifically set forth herein as shall be necessary to
maintain the status of each of the Lower-Tier REMIC and the Upper-Tier REMIC as
a REMIC under the REMIC Provisions (and the Servicer shall assist the Trustee,
to the extent reasonably requested by the Trustee to do so). Neither the
Servicer nor the Special Servicer shall knowingly or intentionally take any
action, cause the Trust Fund to take any action or fail to take (or fail to
cause to be taken) any action reasonably
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within its control and the scope of duties more specifically set forth herein,
that, under the REMIC Provisions, if taken or not taken, as the case may be,
could (i) endanger the status of either the Lower-Tier REMIC or the Upper-Tier
REMIC as a REMIC or (ii) result in the imposition of a tax upon either the
Lower-Tier REMIC or the Upper-Tier REMIC or the Trust Fund (including but not
limited to the tax on "prohibited transactions" as defined in Section 860F(a)(2)
of the Code and the tax on contributions to a REMIC set forth in Section 860G(d)
of the Code, but not including the tax on "net income from foreclosure
property") (either such event, an "Adverse REMIC Event") unless the Trustee
receives an Opinion of Counsel (at the expense of the party seeking to take such
action or, if such party fails to pay such expense, and the Trustee determines
that taking such action is in the best interest of the Trust Fund and the
Certificateholders, at the expense of the Trust Fund, but in no event at the
expense of the Trustee) to the effect that the contemplated action will not,
with respect to the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC
created hereunder, endanger such status or, unless the Trustee determines in its
sole discretion to indemnify the Trust Fund against such tax, result in the
imposition of such a tax (not including a tax on "net income from foreclosure
property"). The Trustee shall not take or fail to take any action (whether or
not authorized hereunder) as to which the Trustee has received an Opinion of
Counsel to the effect that an Adverse REMIC Event could occur with respect to
such action. The Trustee 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 expense of the
Trustee. At all times as may be required by the Code, the Servicer, Special
Servicer and Trustee will to the extent within their respective control and the
scope of their respective duties more specifically set forth herein, maintain
substantially all of the assets of each of the Lower-Tier REMIC and the
Upper-Tier REMIC as "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.
(g) In the event that any applicable federal, state or local tax,
including interest, penalties or assessments, additional amounts or additions to
tax, is imposed on either the Lower-Tier REMIC or the Upper-Tier REMIC, such tax
shall be charged against amounts otherwise distributable to the Holders of the
Certificates, except as provided in the last sentence of this Section 10.01(g);
provided, however, that with respect to the estimated amount of tax imposed on
any "net income from foreclosure property" pursuant to Code Section 860G(d) or
any similar tax imposed by a state or local tax authority, the Special Servicer
shall retain in the related REO Account a reserve for the payment of such taxes
in such amounts and at such times as it shall deem appropriate (or as advised by
the Servicer in writing), and shall remit to the Servicer such reserved amounts
as the Servicer shall request in order to pay such taxes. Except as provided in
the preceding sentence, the Servicer shall withdraw from the Certificate Account
sufficient funds to pay or provide for the payment of, and to actually pay, such
tax as the Trustee notifies the Servicer that it estimates to be legally owed by
either the Lower-Tier REMIC or the Upper-Tier REMIC (but such authorization
shall not prevent the Trustee from contesting, at the expense of the Trust Fund
(other than as a consequence of a breach of its obligations under this
Agreement), any such tax in appropriate proceedings, and withholding payment of
such tax, if permitted by law, pending the outcome of such proceedings). The
Trustee is hereby authorized to and shall segregate, into a separate
non-interest bearing account, the net income from any "prohibited transaction"
under Code Section 860F(a) or the amount of any taxable contribution to the
Lower-Tier REMIC or the Upper-Tier REMIC after the Startup Day that is subject
to tax under Code Section 860G(d) and use such income or amount, to the extent
necessary, to pay such prohibited transactions tax. To the extent that any such
tax (other than any such tax paid in
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respect of "net income from foreclosure property") is paid to the Internal
Revenue Service or applicable state or local tax authorities, the Trustee shall
retain an equal amount from future amounts otherwise distributable to the
Holders of Residual Certificates (as applicable) and shall distribute such
retained amounts, (x) in the case of the Lower-Tier REMIC, to the Holders of the
Uncertificated Lower-Tier Interests to the extent they are fully reimbursed for
any Collateral Support Deficit arising therefrom and then to the Holders of the
Class LR Certificates in the manner specified in Section 4.01(b) and (y) in the
case of the Upper-Tier REMIC, to the Holders of Class A, Class B, Class C, Class
D, Class E, Class F, Class G, Class H, Class I and Class X Certificates, as
applicable, in the manner specified in Section 4.01(a), to the extent they are
fully reimbursed for any Collateral Support Deficit arising therefrom and then
to the Holders of the Class R Certificates. None of the Trustee, the Fiscal
Agent, the Trustee or the Special Servicer shall be responsible for any taxes
imposed on either the Lower-Tier REMIC or the Upper-Tier REMIC except to the
extent such taxes arise as a consequence of a breach of their respective
obligations under this Agreement.
(h) The Trustee shall, for federal income tax purposes, maintain books
and records with respect to each of the Lower-Tier REMIC and the Upper-Tier
REMIC on a calendar year and on an accrual basis or as otherwise may be required
by the REMIC Provisions.
(i) Following the Startup Day, the Trustee shall not accept any
contributions of assets to the Lower-Tier REMIC and the Upper-Tier REMIC unless
the Trustee shall have received an Opinion of Counsel (at the expense of the
party seeking to make such contribution) to the effect that the inclusion of
such assets in the Lower-Tier REMIC or the Upper-Tier REMIC will not (i) cause
either the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a
REMIC at any time that any Uncertificated Lower-Tier Interests or Certificates
are outstanding or (ii) subject either the Trust Fund, the Lower-Tier REMIC or
the Upper-Tier REMIC to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(j) The Trustee shall not enter into any arrangement by which the Trust
Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC will receive a fee
or other compensation for services nor permit the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC 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.
(k) Solely for the purposes of Section 1.860G-l(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date" by which the
Certificate Balance of each Class of Certificates representing a "regular
interest" in the Upper-Tier REMIC and by which the Lower-Tier Principal Amount
of each Class of Uncertificated Lower-Tier Interests representing a "regular
interest" in the Lower-Tier REMIC would be reduced to zero is May 15, 2029,
which is the Distribution Date immediately following the latest scheduled
maturity of any Mortgage Loan.
(l) Within 30 days after the Closing Date, the Trustee 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 Lower-Tier REMIC and the Upper-Tier REMIC.
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(m) Neither the Trustee nor the Servicer shall sell, dispose of or
substitute for any of the Mortgage Loans (except in connection with (i) the
default, imminent default or foreclosure of a Mortgage Loan, including but not
limited to, the acquisition or sale of a Mortgaged Property acquired by
foreclosure or deed in lieu of foreclosure, (ii) the bankruptcy of the Trust
Fund, (iii) the termination of the Trust Fund pursuant to Article IX of this
Agreement or (iv) a purchase of Mortgage Loans pursuant to Article II or III of
this Agreement) or acquire any assets for the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC or sell or dispose of any investments
in the Certificate Account, the Distribution Accounts or the REO Account for
gain unless (a) it has received an Opinion of Counsel that such sale,
disposition or substitution will not affect adversely the status of either the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or (b) the Trustee has
determined in its sole discretion to indemnify the Trust Fund against such tax,
cause the Trust Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC to
be subject to a tax on "prohibited transactions" pursuant to the REMIC
Provisions.
SECTION 10.02. Depositor, Special Servicer, Paying Agent and Trustee to
Cooperate with Servicer.
(a) The Depositor shall provide or cause to be provided to the Trustee,
within 10 days after the Closing Date, all information or data that the Servicer
reasonably determines to be relevant for tax purposes as to the valuations and
Issue Prices of the Certificates, including, without limitation, the price,
yield, Prepayment Assumption and projected cash flow of the Certificates.
(b) The Servicer, the Special Servicer, the Paying Agent and the
Trustee shall each furnish such reports, certifications and information, and
access to such books and records maintained thereby, as may relate to the
Certificates or the Trust Fund and as shall be reasonably requested by the
Servicer in order to enable it to perform its duties hereunder.
SECTION 10.03. Use of Agents.
The Trustee may execute any of its obligations and duties under this
Article X either directly or by or through agents or attorneys. The Trustee
shall not be relieved of any of its duties or obligations under this Article X
by virtue of the appointment of any such agents or attorneys.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the parties
hereto, without the consent of any of the Certificateholders:
(i) to cure any ambiguity;
(ii) to correct or supplement any provisions herein or therein,
which may be inconsistent with any other provisions herein or therein
or to correct any error;
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(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust
Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC
at all times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust Fund or
either the Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the
Code that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided, however, that (i)
the Trustee has received an Opinion of Counsel at the expense of the
party requesting such amendment to the effect that (a) such action is
necessary or desirable to maintain such qualification or to avoid or
minimize the risk of the imposition of any such tax, (b) such action
will not adversely affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in the
withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect;
(iv) to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account or to
change the name in which the Certificate Account is maintained;
provided, however, that (a) such change shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the
interests of any Certificateholder and (b) such change shall not result
in the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by a letter
from each Rating Agency to such effect;
(v) to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision hereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual
interests"; provided, however, that (a) such change shall not result in
the withdrawal, downgrade or qualification of the then-current rating
assigned to any Class of Certificates, as evidenced by a letter from
each Rating Agency to such effect, and (b) such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the Certificateholders
(other than the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a Non-U.S.
Person;
(vi) [Reserved];
(vii) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any
Certificateholder not consenting thereto; and
(viii) to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency provided that such amendment does
not adversely impact any of the Certificateholders.
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(b) This Agreement may also be amended from time to time by the parties
hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 66 2/3% of the Percentage Interests of each Class of
Certificates affected thereby 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 of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed to any Certificate
without the consent of the Holder of such Certificate; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in
any such case without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) amend this Section 11.01; or
(v) amend the definition of Servicing Standard.
(c) Notwithstanding the foregoing, the Trustee will not be entitled to
consent to any amendment hereto without having first received an Opinion of
Counsel (in accordance with Section 11.01(g)) to the effect that such amendment
or the exercise of any power granted to the Servicer, the Depositor, the Special
Servicer, the Trustee or any other specified person in accordance with such
amendment is permitted pursuant to the terms of this Agreement and will not
result in the imposition of a tax on the Trust Fund, the Lower-Tier REMIC or the
Upper-Tier REMIC or cause the Lower-Tier REMIC or the Upper-Tier REMIC to fail
to qualify as a REMIC.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a statement describing the amendment to each Certificateholder and
the Paying Agent and a copy of such amendment to each Rating Agency.
(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) 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) or (c) shall be borne by the Person seeking the related
amendment, except that if the Servicer or the Special Servicer or the Trustee
requests any amendment of this Agreement in
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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.
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 Servicer at the expense of the Depositor on direction by the
Trustee, but only upon direction accompanied by an Opinion of Counsel (the cost
of which shall be paid by the Depositor) to the effect that such recordation
materially and beneficially affects the interests of the Certificateholders.
(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.
(c) The Trustee shall make any filings required under Illinois law, the
costs of which, if any, to be at the Trustee's expense.
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 of any Class evidencing not less than
25% of the related Percentage Interests in such Class 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
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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. The Trustee shall be under no
obligation to exercise any of the trusts or powers vested in it hereunder or to
institute, conduct or defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the Holders of Certificates unless
such Holders have offered to the Trustee reasonable security against the costs,
expenses and liabilities which may be incurred therein or hereby. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section 11.03(c), each and every Certificateholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 11.04. Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given if personally delivered at or mailed by registered mail, postage
prepaid or transmitted by telecopier with a hard copy mailed as described above
in confirmation, to: (i) in the case of the Depositor, PaineWebber Mortgage
Acceptance Corporation V, 1285 Avenue of the Americas, New York, New York 10019
, Attention: Steven J. Plust, telecopy number: (212) 713-8006, with a copy to
O'Melveny & Myers LLP, 153 East 53rd Street, 54th Floor, New York, New York
10022, Attention: Gary Barnett, Esq., telecopy number: (212) 326-2061; (ii) in
the case of the Servicer, Banc One Mortgage Capital Markets, LLC, 1717 Main
Street, 14th Floor, Dallas, Texas 75201, Attention: Edgar L. Smith, II, telecopy
number: (214) 237-2041, with a copies to: Banc One Mortgage Capital Markets,
LLC, 1717 Main Street, 12th Floor, Dallas, Texas 75201, Attention: Paul G.
Smyth, telecopy number: (214) 237-2040 and Akin Gump, Strauss, Hauer & Feld,
1700 Pacific Avenue, Suite 400, Dallas, Texas 75201, Attention: F. Jerry Phelps,
Esq., telecopy number: (214) 959-4343; (iii) in the case of the Special
Servicer, Banc One Mortgage Capital Markets, LLC, 1717 Main Street, 14th Floor,
Dallas, Texas 75201, Attention: Edgar L. Smith, II, telecopy number: (214)
237-2041, with copies to: Banc One Mortgage Capital Markets, LLC, 1717 Main
Street, 12th Floor, Dallas, Texas 75201, Attention: Paul G. Smyth, telecopy
number: (214) 237-2040; (iv) in the case of the Trustee, the Fiscal Agent, the
initial Paying Agent, the initial Authenticating Agent and the initial
Certificate Registrar, LaSalle Bank National Association, 135 South LaSalle
Street, Suite 1625, Chicago, Illinois 60674, Attention: Asset-Backed Securities
Trust Services Group, PMAC V 1999-C1, telecopy number: (312) 904-2084; (vi) in
the case of the Rating Agencies, (a) Moody's Investors Service, Inc., 99 Church
Street, New York, New York 10007, Attention: Structured Finance, telecopy
number: (212) 553-4392;
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and (b) Fitch IBCA, Inc., One State Street Plaza, New York, New York 10004,
Attention: Commercial Mortgage Monitoring Group, telecopy number: (212)
908-0500; and (vii) in the case of the Mortgage Loan Sellers, Paine Webber Real
Estate Securities Inc., 1285 Avenue of the Americas, 19th Floor, New York, New
York 10019, Attention: Steven J. Plust, telecopy number: (212) 713-8606, with a
copy to O'Melveny & Myers LLP, 153 E. 53rd Street, New York, New York 10022,
Attention: Gary Barnett, Esq., telecopy number: (212) 326-2061, and Merrill
Lynch Mortgage Capital, Inc., 100 Church Street, 18th Floor, New York, New York
10080, Attention: Andrea Balkan, telecopy number: (212) 652-7559, with a copy to
Merrill Lynch, 100 Vesey Street, World Financial Center, North Tower, 12th
Floor, New York, New York 10281, Attention: Michael McGovern, telecopy number
(212) 446-0265; 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. Any notice so mailed within
the time prescribed in this Agreement shall be conclusively presumed to have
been duly given, whether or not the Certificateholder receives such notice. Any
notices to the Trustee shall be deemed to have been duly given only when
received.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.07. Confirmation of Intent: 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, (i) 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 comprising the Trust Fund,
including without limitation, the Mortgage Loans, all principal and interest
received or receivable with respect to the Mortgage Loans (other than principal
and interest payments due and payable prior to the Cut-off Date and Principal
Prepayments received prior to the Cut-off Date), all amounts held from time to
time in the Certificate Account, the Distribution Account and, if established,
the REO Account, and all reinvestment earnings on such amounts, and all of the
Depositor's right, title and interest in and to the proceeds of any title,
hazard or other Insurance Policies related to such Mortgage Loans and (ii) this
Agreement shall constitute a security agreement under applicable law. This
Section 11.07 shall constitute notice to the Trustee pursuant to any of the
requirements of the applicable UCC.
SECTION 11.08. 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
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the benefit of the Certificateholders. No other person, including, without
limitation, any Mortgagor, shall be entitled to any benefit or equitable right,
remedy or claim under this Agreement.
SECTION 11.09. 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 11.10. Notices to the Rating Agencies.
(a) The Trustee shall use reasonable best efforts promptly to 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;
(iii) the resignation or termination of the Servicer or the
Special Servicer;
(iv) any change in the location of either of the Distribution
Accounts;
(v) the repurchase of Mortgage Loans by a Mortgage Loan Seller
pursuant to Section 3.3 of the applicable Mortgage Loan Purchase and
Sale Agreement; and
(vi) the final payment to any Class of Certificateholders.
(b) The Servicer shall use reasonable best efforts consistent with the
Servicing Standard promptly to 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 or Fiscal Agent;
(ii) any change in the location of the Certificate Account; and
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Paying Agent or the
Trustee;
(iv) any change in the lien priority of any Mortgage Loan;
(v) any additional lease to an anchor tenant or termination of any
existing lease to an anchor tenant at retail properties for any
Mortgage Loan with a Stated Principal Balance that is greater than 5% o
the then aggregate outstanding principal balances of the Mortgage
Loans;
(vi) any material damage to any Mortgaged Property;
(vii) any assumption with respect to a Mortgage Loan; and
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(viii) any release or substitution of any Mortgaged Property.
(c) Each of the Servicer and the Special Servicer shall promptly
furnish to each Rating Agency copies of the following:
(i) each of its annual statements as to compliance described in
Section 3.13;
(ii) inspection reports and other items delivered to each of the
Servicer and Special Servicer pursuant to Sections 3.12(a) and 3.12(b);
(iii) each of its annual independent public accountants' servicing
reports described in Section 3.14;
(iv) a CSSA Standard Information Package with respect to each
Distribution Date required to be delivered pursuant to Section 4.02(b);
and
(v) each waiver and consent provided pursuant to Section 3.08.
(d) The Paying Agent shall promptly furnish to each Rating Agency a
copy of the statement to Certificateholders distributed pursuant to Section
4.02(a).
(e) The Servicer, Special Servicer, Trustee, Fiscal Agent and the
Depositor, as applicable, shall promptly notify each Rating Agency of any
transaction of merger or consolidation involving itself, any liquidation,
reorganization or dissolution of itself, or any termination under this
Agreement.
(f) The Trustee shall promptly notify each Rating Agency, the Servicer
and Special Servicer upon the payment of the final distribution to the
Certificateholders pursuant to Section 4.01.
(g) The Servicer and the Special Servicer, as applicable, shall furnish
to each Rating Agency with respect to each Mortgage Loan such information as the
Rating Agency shall reasonably request and which the Servicer or Special
Servicer can reasonably provide in accordance with applicable law and without
waiving any attorney-client privilege relating to such information. The Servicer
and Special Servicer, as applicable, may include any reasonable disclaimer it
deems appropriate with respect to such information.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers hereunto duly authorized, in each
case as of the day and year first above written.
PAINEWEBBER MORTGAGE ACCEPTANCE
CORPORATION V,
as Depositor
By: /s/ Steven J. Plust
---------------------------
Name: Steven J. Plust
Title: Managing Director
S-1
<PAGE>
BANC ONE MORTGAGE CAPITAL MARKETS, LLC
Servicer
By: /s/ Edgar L. Smith, II
---------------------------
Name: Edgar L. Smith, II
Title: Chief Operating Officer
S-2
<PAGE>
BANC ONE MORTGAGE CAPITAL MARKETS, LLC
Special Servicer
By: /s/ Edgar L. Smith, II
---------------------------
Name: Edgar L. Smith, II
Title: Chief Operating Officer
S-3
<PAGE>
ABN AMRO BANK N.V., not in its individual
capacity but as Fiscal Agent
Fiscal Agent
By: /s/ Robert C. Smolka
---------------------------
Name: Robert C. Smolka
Title: Group Vice President
By: /s/ Mary C. Casey
---------------------------
Name: Mary C. Casey
Title: Vice President
S-4
<PAGE>
LASALLE BANK NATIONAL ASSOCIATION not in
its individual capacity but as Trustee
Trustee
By: /s/ Barbara C. Wolf
---------------------------
Name: Barbara C. Wolf
Title: Vice President
S-5
<PAGE>
Exhibit A-1
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS A-1
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT 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.
========================================= ====================================
INITIAL PASS-THROUGH RATE: 6.48% APPROXIMATE AGGREGATE SCHEDULED
PRINCIPAL BALANCE OF THE MORTGAGE
DENOMINATION: $153,627,000 LOANS AFTER DEDUCTING PAYMENTS DUE
AND PREPAYMENTS RECEIVED ON OR
BEFORE CUT-OFF DATE:
$704,764,602
- ----------------------------------------- ------------------------------------
DATE OF POOLING AND SERVICING SERVICER: BANC ONE MORTGAGE
AGREEMENT: AS OF JUNE 1, 1999 CAPITAL MARKETS, LLC
- ----------------------------------------- ------------------------------------
CUT-OFF DATE: JUNE 1, 1999 OR WITH SPECIAL SERVICER: BANC ONE MORTGAGE
RESPECT TO ONE MORTGAGE LOAN, JUNE 5, CAPITAL MARKETS, LLC
1999.
- ----------------------------------------- ------------------------------------
CLOSING DATE: JUNE 7, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
- ----------------------------------------- ------------------------------------
FIRST DISTRIBUTION DATE: JULY 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
A-1-1
<PAGE>
- ----------------------------------------- ------------------------------------
APPROXIMATE AGGREGATE CERTIFICATE CUSIP NO.
BALANCE OF THE CLASS A-1 CERTIFICATES ----------------
AS OF THE CLOSING DATE: $153,627,000 CERTIFICATE NO.: A-1-1
========================================= ================= ==================
A-1-2
<PAGE>
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, monthly pay mortgage loans primarily secured by first
priority liens on fee simple or leasehold interests in multifamily, retail,
office, hospitality, industrial, credit tenant, health-care related, mixed use,
mobile home park and self storage properties (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Account, the Policy Escrow Account and the REO Accounts, formed and
sold by
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN PAINEWEBBER
MORTGAGE ACCEPTANCE CORPORATION V, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT
CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1 Certificates issued by the Trust created pursuant to the Pooling and
Servicing Agreement, dated as of June 1, 1999 (the "Pooling and Servicing
Agreement"), among PaineWebber Mortgage Acceptance Corporation V (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), LaSalle Bank National Association, as Trustee
(the "Trustee"), Banc One Mortgage Capital Markets, LLC, as servicer, (the
"Servicer"), Banc One Mortgage Capital Markets, LLC, as special servicer (the
"Special Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal
Agent"). A summary of certain of the pertinent provisions of the Pooling and
Servicing Agreement is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein shall have the meanings assigned thereto in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate, as specified on the face hereof, by the aggregate initial
Certificate Balance of the Class A-1 Certificates. The Certificates are
designated as the PaineWebber Mortgage Acceptance Corporation V, Commercial
Mortgage Pass-Through Certificates, Series 1999-C1 and are issued
A-1-3
<PAGE>
in the Classes of Certificates as specifically set forth in the Pooling and
Servicing Agreement. The Certificates will evidence in the aggregate 100% of the
beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Servicer, the
Special Servicer, theTrustee or the Fiscal Agent. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement, as amended from
time to time, the Certificateholder by virtue of the acceptance hereof assents
and by which the Certificateholder is bound. IN THE CASE OF ANY CONFLICT BETWEEN
TERMS SPECIFIED IN THIS CERTIFICATE AND TERMS SPECIFIED IN THE POOLING AND
SERVICING AGREEMENT, THE TERMS OF THE POOLING AND SERVICING AGREEMENT SHALL
GOVERN.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums and Yield Maintenance Charges as provided
in the Pooling and Servicing Agreement. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class A-1
Pass-Through Rate, which shall equal the fixed rate per annum specified above on
the Certificate Balance of this Certificate. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-1-4
<PAGE>
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee will be authorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other income earned on funds in
the Certificate Account will be paid to the Servicer as set forth in the Pooling
and Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wiring transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the location specified in the notice to Certificateholders of
such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust shall terminate. If any Certificates as
to which notice has been given pursuant to Section 4.01(i) of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Trustee,
directly or through an agent, shall take such steps to contact the remaining
non-tendering Certificateholders concerning 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 Certificateholder shall be
paid out of such funds. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust by the Trustee or the Paying Agent
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 4.01(i) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering
A-1-5
<PAGE>
such Certificate at the Registrar Office or at the office of any successor
Certificate Registrar or transfer agent appointed by the Certificate Registrar
together with an instrument of transfer, duly endorsed by, or accompanied by an
assignment in the form set forth below or other written instrument of transfer
in form satisfactory to the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney-in-fact duly authorized in writing, in the case
of a transfer, and a written request for exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Class A-1 Certificates will be issued in book-entry form through the
facilities of DTC in minimum Denominations of $25,000 initial Certificate
Balance, and in integral multiples of $1,000 in excess thereof, with one
Certificate evidencing an additional amount equal to the remainder of the
initial Certificate Balance of Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. With respect to any transfer or
exchange of any Certificate, the Certificate Registrar may require payment by
each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and Servicing Agreement, and none of the
Depositor, the Trustee, the Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar and any agent of any of them shall be affected by
notice to the contrary except as provided in Section 5.02(d) of the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided, however,
that (i) the Trustee has received an Opinion of Counsel to the
effect that (a) such action is
A-1-6
<PAGE>
necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax,
(b) such action will not adversely affect in any material
respect the interests of any Certificateholder, and (ii) such
change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class
of Certificates, as evidenced by a letter from each Rating
Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) such change shall not, as
evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and
(b) such change shall not result in the withdrawal, downgrade
or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each
Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests"; provided, however, that (a) such change
shall not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of
Certificates, as evidenced by a letter from each Rating Agency
to such effect, and (b) such change shall not, as evidenced by
an Opinion of Counsel, cause the Trust Fund, the Lower-Tier
REMIC, the Upper-Tier REMIC or any of the Certificateholders
(other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
g. to amend or supplement any provision of the Pooling and
Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by
each Rating Agency; provided, however, that such amendment
does not adversely impact any of the Certificateholders.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
A-1-7
<PAGE>
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
entitled to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (in accordance with Section
11.01(g) of the Pooling and Servicing Agreement) to the effect that such
amendment or the exercise of any power granted to the Servicer, the Special
Servicer, the Depositor, the Trustee, the Fiscal Agent or any other specified
person in accordance with such amendment is permitted pursuant to the terms of
the Pooling and Servicing Agreement and will not result in the imposition of a
tax on the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC or cause the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC.
The Servicer may, at its option, elect to purchase all of the
Mortgage Loans and each REO Property remaining in the Trust as contemplated by
clause (ii) of the succeeding paragraph by giving written notice to the Trustee
and the other parties hereto no later than 60 days prior to the anticipated date
of purchase; provided, however, that the Servicer may so elect to purchase all
of the Mortgage Loans and each REO Property remaining in the Trust only on or
after the first Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust is less
than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage Loans
set forth in the Preliminary Statement. In the event that the Servicer does not
exercise such purchase option within 10 Business Days of such Distribution Date,
then the Special Servicer may purchase all of the Mortgage Loans and REO
Properties. If the Mortgage Loans and REO Properties are not purchased by the
Servicer or the Special Servicer pursuant to their respective options, then the
Controlling Class Certificateholder holding the largest Certificate Balance of
the Controlling Class, and the Holder of the majority interest of the Class LR
Certificates, in that order, may purchase all of the Mortgage Loans and REO
Properties then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written
A-1-8
<PAGE>
notice of termination of the Pooling and Servicing Agreement will be given to
each Certificateholder, and the final distribution will be made only upon
surrender and cancellation of the Certificates at the office of the Certificate
Registrar or other location specified in such notice of termination. In no
event, however, will the Trust created by the Pooling and Servicing Agreement
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's, living on the date hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-1-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By:
-----------------------------------
Name:
Title:
Dated: June 7, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
---------------------------------
Name:
Title:
A-1-10
<PAGE>
<TABLE>
<CAPTION>
=============== ================================ ================== =====================
<S> <C> <C> <C>
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred for,
or issued in exchange for or
upon transfer of any Remaining
Principal interest in this
Book-Entry Certificate
- --------------- -------------------------------- ------------------ ---------------------
- --------------- -------------------------------- ------------------ ---------------------
- --------------- -------------------------------- ------------------ ---------------------
- --------------- -------------------------------- ------------------ ---------------------
- --------------- -------------------------------- ------------------ ---------------------
- --------------- -------------------------------- ------------------ ---------------------
- --------------- -------------------------------- ------------------ ---------------------
- --------------- -------------------------------- ------------------ ---------------------
- --------------- -------------------------------- ------------------ ---------------------
- --------------- -------------------------------- ------------------ ---------------------
- --------------- -------------------------------- ------------------ ---------------------
- --------------- -------------------------------- ------------------ ---------------------
=============== ================================ ================== =====================
</TABLE>
A-1-11
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT Custodian (Cust)
-----
under Uniform Gifts to
TEN ENT - as tenants by the Minors Act
entireties ---------
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
-----------------------------
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-1-12
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to for the account
--------------------------------
of account number
-------------------------- ----------------------------------
or, if mailed by check, to . Statements should be
-----------------------------
mailed to . This information is provided by assignee named
---------------------
above, or , as its agent.
-------------------
A-1-13
<PAGE>
Exhibit A-2
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS A-2
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT 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.
========================================== ===================================
INITIAL PASS-THROUGH RATE: 6.82% APPROXIMATE AGGREGATE SCHEDULED
PRINCIPAL BALANCE OF THE MORTGAGE
DENOMINATION: $200,000,000 LOANS AFTER DEDUCTING PAYMENTS DUE
AND PREPAYMENTS RECEIVED ON OR
BEFORE CUT-OFF DATE:
$704,764,602
- ------------------------------------------ -----------------------------------
DATE OF POOLING AND SERVICING SERVICER: BANC ONE MORTGAGE
AGREEMENT: AS OF JUNE 1, 1999 CAPITAL MARKETS, LLC
- ------------------------------------------ -----------------------------------
CUT-OFF DATE: JUNE 1, 1999 OR WITH SPECIAL SERVICER: BANC ONE MORTGAGE
RESPECT TO ONE MORTGAGE LOAN, JUNE 5, CAPITAL MARKETS, LLC
1999.
- ------------------------------------------ -----------------------------------
CLOSING DATE: JUNE 7, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
- ------------------------------------------ -----------------------------------
FIRST DISTRIBUTION DATE: JULY 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
A-2-1
<PAGE>
- ------------------------------------------ -----------------------------------
APPROXIMATE AGGREGATE CERTIFICATE CUSIP NO.
BALANCE OF THE CLASS A-2 CERTIFICATES ------------
AS OF THE CLOSING DATE: $357,327,000 CERTIFICATE NO.: A-2-1
-------
========================================== ===================================
A-2-2
<PAGE>
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, commercial, multifamily and mobile home community
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Interest Reserve Account, the Excess Interest Account, the Policy Escrow Account
and the REO Accounts, formed and sold by
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN PAINEWEBBER
MORTGAGE ACCEPTANCE CORPORATION V, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT
CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-2 Certificates issued by the Trust created pursuant to the Pooling and
Servicing Agreement, dated as of May 1, 1999 (the "Pooling and Servicing
Agreement"), among PaineWebber Mortgage Acceptance Corporation V (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), LaSalle Bank National Association, as Trustee
(the "Trustee"), Banc One Mortgage Capital Markets, LLC, as servicer (the
"Servicer"), Banc One Mortgage Capital Markets, LLC, as special servicer (the
"Special Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal
Agent"). A summary of certain of the pertinent provisions of the Pooling and
Servicing Agreement is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein shall have the meanings assigned thereto in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate, as specified on the face hereof, by the aggregate initial
Certificate Balance of the Class A-2 Certificates. The Certificates are
designated as the PaineWebber Mortgage Acceptance Corporation V, Commercial
Mortgage Pass-Through Certificates, Series 1999-C1 and are issued in the Classes
of Certificates as specifically set forth in the Pooling and Servicing
Agreement.
A-2-3
<PAGE>
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement, as amended from
time to time, the Certificateholder by virtue of the acceptance hereof assents
and by which the Certificateholder is bound. IN THE CASE OF ANY CONFLICT BETWEEN
TERMS SPECIFIED IN THIS CERTIFICATE AND TERMS SPECIFIED IN THE POOLING AND
SERVICING AGREEMENT, THE TERMS OF THE POOLING AND SERVICING AGREEMENT SHALL
GOVERN.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums Yield Maintenance Charges as provided in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class A-2
Pass-Through Rate, which shall equal the fixed rate per annum specified above on
the Certificate Balance of this Certificate. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
A-2-4
<PAGE>
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee will beauthorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other income earned on funds in
the Certificate Account will be paid to the Servicer as set forth in the Pooling
and Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire transfer instructions in writing no less than five Business
Days prior to the related Record Date, by wire transfer of immediately available
funds to the account specified by such Certificateholder at a bank or other
entity having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust shall terminate. If any Certificates as
to which notice has been given pursuant to Section 4.01(i) of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Trustee,
directly or through an agent, shall take such steps to contact the remaining
non-tendering Certificateholders concerning 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 Certificateholder shall be
paid out of such funds. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust by the Trustee or the Paying Agent
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 4.01(i) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in
A-2-5
<PAGE>
whole or in part (with a denomination equal to any authorized denomination) by
surrendering such Certificate at the Registrar Office or at the office of any
successor Certificate Registrar or transfer agent appointed by the Certificate
Registrar together with an instrument of transfer, duly endorsed by, or
accompanied by an assignment in the form set forth below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, in the case of a transfer, and a written request for exchange in the
case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Class A-2 Certificates will be issued in book-entry form through the
facilities of DTC in minimum Denominations of $25,000 initial Certificate
Balance, and in integral multiples of $1,000 in excess thereof, with one
Certificate of such Class evidencing an additional amount equal to the remainder
of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. With respect to any transfer or
exchange of any Certificate, the Certificate Registrar may require payment by
each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and Servicing Agreement, and none of the
Depositor, the Trustee, the Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar and any agent of any of them shall be affected by
notice to the contrary except as provided in Section 5.02(d) of the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
A-2-6
<PAGE>
Lower-Tier REMIC or the Upper-Tier REMIC; provided, however,
that (i) the Trustee has received an Opinion of Counsel to the
effect that (a) such action is necessary or desirable to
maintain such qualification or to avoid or minimize the risk
of the imposition of any such tax, (b) such action will not
adversely affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) such change shall not, as
evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and
(b) such change shall not result in the withdrawal, downgrade
or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each
Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests"; provided, however, that (a) such change
shall not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of
Certificates, as evidenced by a letter from each Rating Agency
to such effect, and (b) such change shall not, as evidenced by
an Opinion of Counsel, cause the Trust Fund, the Lower-Tier
REMIC, the Upper-Tier REMIC or any of the Certificateholders
(other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
g. to amend or supplement any provision of the Pooling and
Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by
each Rating Agency; provided, however, that such amendment
does not adversely impact any of the Certificateholders.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of
A-2-7
<PAGE>
the Holders of Certificates of such Class; provided, however, that no such
amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
entitled to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (in accordance with Section
11.01(g) of the Pooling and Servicing Agreement) to the effect that such
amendment or the exercise of any power granted to the Servicer, the Special
Servicer, the Depositor, the Trustee, the Fiscal Agent or any other specified
person in accordance with such amendment is permitted pursuant to the terms of
the Pooling and Servicing Agreement and will not result in the imposition of a
tax on the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC or cause the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC.
The Servicer may, at its option, elect to purchase all of the
Mortgage Loans and each REO Property remaining in the Trust Fund as contemplated
by clause (ii) of the succeeding paragraph by giving written notice to the
Trustee and the other parties hereto no later than 60 days prior to the
anticipated date of purchase; provided, however, that the Servicer may so elect
to purchase all of the Mortgage Loans and each REO Property remaining in the
Trust only on or after the first Distribution Date on which the aggregate Stated
Principal Balances of the Mortgage Loans and any REO Loans remaining in the
Trust Fund is less than 1% of the aggregate Cut-off Date Principal Balance of
the Mortgage Loans set forth in the Preliminary Statement. In the event that the
Servicer does not exercise such purchase option within 10 Business Days of such
Distribution Date, then the Special Servicer may purchase all of the Mortgage
Loans and REO Properties. If the Mortgage Loans and REO Properties are not
purchased by the Servicer or the Special Servicer pursuant to their respective
options, then the Controlling Class Certificateholder holding the largest
Certificate Balance of the Controlling Class, and the Holder of the majority
interest of the Class LR Certificates, in that order, may purchase all of the
Mortgage Loans and REO Properties then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property
A-2-8
<PAGE>
subject thereto or (ii) the purchase of all of the assets of the Trust Fund by
the Servicer, the Special Servicer, the holders of the Controlling Class or the
holders of the Class LR Certificates. Written notice of termination of the
Pooling and Servicing Agreement will be given to each Certificateholder, and the
final distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement 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's,
living on the date hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-2-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By:
-----------------------------------
Name:
Title:
Dated: June 7, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
----------------------------------
Name:
Title:
A-2-10
<PAGE>
<TABLE>
<CAPTION>
================================= ================================ ============================= ===============================
<S> <C> <C> <C>
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred for,
or issued in exchange for or
upon transfer of any Remaining
Principal interest in this
Book-Entry Certificate
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
================================= ================================ ============================= ===============================
</TABLE>
A-2-11
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - Custodian (Cust)
-------
under Uniform Gifts to
TEN ENT - as tenants by the Minors Act
entireties ----------
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-2-12
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to for the account
--------------------------------
of account number or,
-------------------------- ------------------------------
if mailed by check, to . Statements should be
-----------------------------
mailed to . This information is provided by assignee named
---------------------
above, or , as its agent.
-------------------
A-2-13
<PAGE>
Exhibit A-3
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS B
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT 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 MAY NOT BE PURCHASED OR TRANSFERRED (IN THE CASE OF
THE INITIAL SALE OR TRANSFERS TO PURCHASERS WHO TAKE IN DEFINITIVE FORM) UNLESS
THE CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER AN ERISA REPRESENTATION
LETTER FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM
AND SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO
THE EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE
BENEFIT PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL
PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON
ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
A-3-1
<PAGE>
INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR
REGULATION ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF
ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF
SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. ANY TRANSFEREE OF A BENEFICIAL INTEREST IN
THIS CERTIFICATE HELD IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE
SHALL BE DEEMED TO HAVE MADE THE FOREGOING REPRESENTATIONS.
========================================= ====================================
INITIAL PASS-THROUGH RATE: 6.98% APPROXIMATE AGGREGATE SCHEDULED
PRINCIPAL BALANCE OF THE MORTGAGE
DENOMINATION: $35,238,000 LOANS AFTER DEDUCTING PAYMENTS DUE
AND PREPAYMENTS RECEIVED ON OR
BEFORE CUT-OFF DATE:
$704,764,602
- ----------------------------------------- ------------------------------------
DATE OF POOLING AND SERVICING SERVICER: BANC ONE MORTGAGE
AGREEMENT: AS OF JUNE 1, 1999 CAPITAL MARKETS, LLC
- ----------------------------------------- ------------------------------------
CUT-OFF DATE: JUNE 1, 1999 OR WITH SPECIAL SERVICER: BANC ONE MORTGAGE
RESPECT TO ONE MORTGAGE LOAN, JUNE 5, CAPITAL MARKETS, LLC
1999.
- ----------------------------------------- ------------------------------------
CLOSING DATE: JUNE 7, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
- ----------------------------------------- ------------------------------------
FIRST DISTRIBUTION DATE: JULY 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
APPROXIMATE AGGREGATE CERTIFICATE CUSIP NO.
BALANCE OF THE CLASS B CERTIFICATES AS ---------------
OF THE CLOSING DATE: $35,238,000 CERTIFICATE NO.: B-1
----
========================================= ====================================
A-3-2
<PAGE>
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, monthly pay mortgage loans primarily secured by first
priority liens on fee simple or leasehold interests in multifamily, retail,
office, hospitality, industrial, credit tenant, health-care related, mixed use,
mobile home park and self storage properties (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Account, the Policy Escrow Account and the REO Accounts, formed and
sold by
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN PAINEWEBBER
MORTGAGE ACCEPTANCE CORPORATION V, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT
CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class B Certificates issued by the Trust created pursuant to the Pooling and
Servicing Agreement, dated as of June 1, 1999 (the "Pooling and Servicing
Agreement"), among PaineWebber Mortgage Acceptance Corporation V (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), LaSalle Bank National Association, as Trustee
(the "Trustee"), Banc One Mortgage Capital Markets, LLC, as servicer (the
"Servicer"), Banc One Mortgage Capital Markets, LLC, as special servicer (the
"Special Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal
Agent"). A summary of certain of the pertinent provisions of the Pooling and
Servicing Agreement is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein shall have the meanings assigned thereto in
the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate, a specified on the face hereof, by the aggregate initial
Certificate Balance of the Class B Certificates. The Certificates are designated
as the PaineWebber Mortgage Acceptance
A-3-3
<PAGE>
Corporation V, Commercial Mortgage Pass-Through Certificates, Series 1999-C1 and
are issued in the Classes of Certificates as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement, as amended from
time to time, the Certificateholder by virtue of the acceptance hereof assents
and by which the Certificateholder is bound. IN THE CASE OF ANY CONFLICT BETWEEN
TERMS SPECIFIED IN THIS CERTIFICATE AND TERMS SPECIFIED IN THE POOLING AND
SERVICING AGREEMENT, THE TERMS OF THE POOLING AND SERVICING AGREEMENT SHALL
GOVERN.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums or Yield Maintenance Charges as provided
in the Pooling and Servicing Agreement. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class B
Pass-Through Rate, which shall equal the lesser of (x) the fixed rate per annum
specified above on the Certificate Balance of this Certificate and (y) the
weighted average of the Net Mortgage Rates of the Mortgage Loans (such Net
Mortgage Rates determined without taking into account any reductions thereto
resulting from modifications of the Mortgage Loans or otherwise following the
Cut-Off Date), immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage
A-3-4
<PAGE>
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee will beauthorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other income earned on funds in
the Certificate Account will be paid to the Servicer as set forth in the Pooling
and Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire transfer instructions in writing no less than five Business
Days prior to the related Record Date, by wire transfer of immediately available
funds to the account specified by such Certificateholder at a bank or other
entity having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust shall terminate. If any Certificates as
to which notice has been given pursuant to Section 4.01(i) of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Trustee,
directly or through an agent, shall take such steps to contact the remaining
non-tendering Certificateholders concerning 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 Certificateholder shall be
paid out of such funds. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust by the Trustee or the Paying Agent
as a result of such Certificateholder's
A-3-5
<PAGE>
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(i) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Class B Certificates will be issued in book-entry form through the
facilities of DTC in minimum Denominations of $25,000 initial Certificate
Balance, and in integral multiples of $1,000 in excess thereof, with one
Certificate of such Class evidencing an additional amount equal to the remainder
of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. With respect to any transfer or
exchange of any Certificate, the Certificate Registrar may require payment by
each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and Servicing Agreement, and none of the
Depositor, the Trustee, the Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar and any agent of any of them shall be affected by
notice to the contrary except as provided in Section 5.02(d) of the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the
A-3-6
<PAGE>
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC at all
times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust
Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC
pursuant to the Code that would be a claim against the Trust
Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC;
provided, however, that (i) the Trustee has received an
Opinion of Counsel to the effect that (a) such action is
necessary or desirable to maintain such qualification or to
avoid or minimize the risk of the imposition of any such tax,
(b) such action will not adversely affect in any material
respect the interests of any Certificateholder, and (ii) such
change shall not result in the withdrawal, downgrade or
qualification of the then-current rating assigned to any Class
of Certificates, as evidenced by a letter from each Rating
Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) such change shall not, as
evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and
(b) such change shall not result in the withdrawal, downgrade
or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each
Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests"; provided, however, that (a) such change
shall not result in the withdrawal, downgrade or qualification
of the then-current rating assigned to any Class of
Certificates, as evidenced by a letter from each Rating Agency
to such effect, and (b) such change shall not, as evidenced by
an Opinion of Counsel, cause the Trust Fund, the Lower-Tier
REMIC, the Upper-Tier REMIC or any of the Certificateholders
(other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified
Organization or a Non-U.S. Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
g. to amend or supplement any provision of the Pooling and
Servicing Agreement to the extent necessary to maintain the
rating or ratings assigned to each Class of Certificates by
each Rating Agency; provided, however, that such amendment
does not adversely impact any of the Certificateholders.
The Pooling and Servicing Agreement may also be amended from
time to time by
A-3-7
<PAGE>
the parties hereto with the consent of the Holders of Certificates evidencing in
the aggregate not less than 66 2/3% of the Percentage Interests of each Class of
Certificates affected thereby for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the Holders of
Certificates of such Class; provided, however, that no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
entitled to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (in accordance with Section
11.01(g) of the Pooling and Servicing Agreement) to the effect that such
amendment or the exercise of any power granted to the Servicer, the Special
Servicer, the Depositor, the Trustee, the Fiscal Agent or any other specified
person in accordance with such amendment is permitted pursuant to the terms of
the Pooling and Servicing Agreement and will not result in the imposition of a
tax on the Trust Fund, the Lower-Tier REMIC or the Upper-Tier REMIC or cause the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC.
The Servicer may, at its option, elect to purchase all of the
Mortgage Loans and each REO Property remaining in the Trust Fund as contemplated
by clause (ii) of the succeeding paragraph by giving written notice to the
Trustee and the other parties hereto no later than 60 days prior to the
anticipated date of purchase; provided, however, that the Servicer may so elect
to purchase all of the Mortgage Loans and each REO Property remaining in the
Trust only on or after the first Distribution Date on which the aggregate Stated
Principal Balances of the Mortgage Loans and any REO Loans remaining in the
Trust Fund is less than 1% of the aggregate Cut-off Date Principal Balance of
the Mortgage Loans set forth in the Preliminary Statement. In the event that the
Servicer does not exercise such purchase option within 10 Business Days of such
Distribution Date, then the Special Servicer may purchase all of the Mortgage
Loans and REO Properties. If the Mortgage Loans and REO Properties are not
purchased by the Servicer or the Special Servicer pursuant to their respective
options, then the Controlling Class Certificateholder holding the largest
Certificate Balance of the Controlling Class, and the Holder of the majority
interest of the Class LR Certificates, in that order, may purchase all of the
Mortgage Loans and REO Properties then included in the Trust.
A-3-8
<PAGE>
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement 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's,
living on the date hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-3-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By:
-----------------------------------
Name:
Title:
Dated: June 7, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
as Authenticating Agent
By:
-----------------------------------
Name:
Title:
A-3-10
<PAGE>
<TABLE>
<CAPTION>
================================= ================================ ============================= ===============================
<S> <C> <C> <C>
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred for,
or issued in exchange for or
upon transfer of any Remaining
Principal interest in this
Book-Entry Certificate
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
================================= ================================ ============================= ===============================
</TABLE>
A-3-11
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - Custodian (Cust)
-----
under Uniform Gifts to
TEN ENT - as tenants by the Minors Act
entireties ---------
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-3-12
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to for the account
--------------------------------
of account number or, if
-------------------------- --------------------------
mailed by check, to . Statements should be mailed
-----------------------------
to . This information is provided by assignee named above,
---------------------
or , as its agent.
-------------------
A-3-13
<PAGE>
Exhibit A-4
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS C
THIS CLASS C CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT 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 MAY NOT BE PURCHASED OR TRANSFERRED (IN THE CASE OF THE INITIAL
SALE OR TRANSFERS TO PURCHASERS WHO TAKE IN DEFINITIVE FORM) UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER AN ERISA REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL
PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON
ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
A-4-1
<PAGE>
INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR
REGULATION ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF
ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF
SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. ANY TRANSFEREE OF A BENEFICIAL INTEREST IN
THIS CERTIFICATE HELD IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE
SHALL BE DEEMED TO HAVE MADE THE FOREGOING REPRESENTATIONS.
========================================= ====================================
INITIAL PASS-THROUGH RATE: 7.10% APPROXIMATE AGGREGATE SCHEDULED
PRINCIPAL BALANCE OF THE MORTGAGE
DENOMINATION: $37,000,000 LOANS AFTER DEDUCTING PAYMENTS DUE
AND PREPAYMENTS RECEIVED ON OR
BEFORE CUT-OFF DATE:
$704,764,602
- ----------------------------------------- ------------------------------------
DATE OF POOLING AND SERVICING SERVICER: BANC ONE MORTGAGE
AGREEMENT: AS OF JUNE 1, 1999 CAPITAL MARKETS, LLC
- ----------------------------------------- ------------------------------------
CUT-OFF DATE: JUNE 1, 1999 OR WITH SPECIAL SERVICER: BANC ONE MORTGAGE
RESPECT TO ONE MORTGAGE LOAN, JUNE 5, CAPITAL MARKETS, LLC
1999.
- ----------------------------------------- ------------------------------------
CLOSING DATE: JUNE 7, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
- ----------------------------------------- ------------------------------------
FIRST DISTRIBUTION DATE: JULY 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
APPROXIMATE AGGREGATE CERTIFICATE CUSIP NO.
BALANCE OF THE CLASS C CERTIFICATES AS ---------------
OF THE CLOSING DATE: $37,000,000 CERTIFICATE NO.: C-1
----
========================================= ====================================
A-4-2
<PAGE>
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, monthly pay mortgage loans primarily secured by first
priority liens on fee simple or leasehold interests in multifamily, retail,
office, hospitality, industrial, credit tenant, health-care related, mixed use,
mobile home park and self storage properties (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Account, the Policy Escrow Account and the REO Accounts, formed and
sold by
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN PAINEWEBBER
MORTGAGE ACCEPTANCE CORPORATION V, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT
CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class C Certificates issued by the Trust created pursuant to the Pooling and
Servicing Agreement, dated as of June 1, 1999 (the "Pooling and Servicing
Agreement"), among PaineWebber Mortgage Acceptance Corporation V (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), LaSalle Bank National Association, as Trustee
(the "Trustee"), Banc One Mortgage Capital Markets, LLC, as special servicer
(the "Special Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer
(the "Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate, as specified on the face hereof, by the aggregate initial
Certificate Balance of the Class C Certificates. The Certificates are designated
as the PaineWebber Mortgage Acceptance
A-4-3
<PAGE>
Corporation V, Commercial Mortgage Pass-Through Certificates, Series 1999-C1 and
are issued in the Classes of Certificates as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement, as amended from
time to time, the Certificateholder by virtue of the acceptance hereof assents
and by which the Certificateholder is bound. IN THE CASE OF ANY CONFLICT BETWEEN
TERMS SPECIFIED IN THIS CERTIFICATE AND TERMS SPECIFIED IN THE POOLING AND
SERVICING AGREEMENT, THE TERMS OF THE POOLING AND SERVICING AGREEMENT SHALL
GOVERN.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums and Yield Maintenance Charges as provided
in the Pooling and Servicing Agreement. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class C
Pass-Through Rate, which shall equal the lesser of (x) the fixed rate per annum
specified above on the Certificate Balance of this Certificate and (y) the
weighted average of the Net Mortgage Rates of the Mortgage Loans (such Net
Mortgage Rates determined without taking into account any reductions thereto
resulting from modifications of the Mortgage Loans or otherwise following the
Cut-Off Date), immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage
A-4-4
<PAGE>
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee will beauthorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other income earned on funds in
the Certificate Account will be paid to the Servicer as set forth in the Pooling
and Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire transfer instructions in writing no less than five Business
Days prior to the related Record Date, by wire transfer of immediately available
funds to the account specified by such Certificateholder at a bank or other
entity having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust shall terminate. If any Certificates as
to which notice has been given pursuant to Section 4.01(i) of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Trustee,
directly or through an agent, shall take such steps to contact the remaining
non-tendering Certificateholders concerning 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 Certificateholder shall be
paid out of such funds. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust by the Trustee or the Paying Agent
as a result of such Certificateholder's
A-4-5
<PAGE>
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(i) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Class C Certificates will be issued in book-entry form through the
facilities of DTC in minimum Denominations of $25,000 initial Certificate
Balance, and in integral multiples of $1,000 in excess thereof, with one
Certificate of such Class evidencing an additional amount equal to the remainder
of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. With respect to any transfer or
exchange of any Certificate, the Certificate Registrar may require payment by
each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and Servicing Agreement, and none of the
Depositor, the Trustee, the Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar and any agent of any of them shall be affected by
notice to the contrary except as provided in Section 5.02(d) of the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the
A-4-6
<PAGE>
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC at all
times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust
Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC
pursuant to the Code that would be a claim against the Trust
Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC;
provided that (i) the Trustee has received an Opinion of
Counsel to the effect that (a) such action is necessary or
desirable to maintain such qualification or to avoid or
minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the
interests of any Certificateholder, and (ii) such change shall
not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such
effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) such change shall not, as
evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and
(b) such change shall not result in the withdrawal, downgrade
or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each
Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not
A-4-7
<PAGE>
less than 66 2/3% of the Percentage Interests of each Class of Certificates
affected thereby for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Holders of
Certificates of such Class; provided, however, that no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (in accordance with Section
11.01(g) of the Pooling and Servicing Agreement) to the effect that such
amendment or the exercise of any power granted to the Servicer, the Special
Servicer, the Depositor, the Trustee, the Fiscal Agent or any other specified
person in accordance with such amendment is permitted pursuant to the terms of
the Pooling and Servicing Agreement and will not result in the imposition of a
tax on the REMIC constituted by the Trust or cause the Trust (or either the
Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a REMIC.
The Servicer may, at its option, elect to purchase all of the
Mortgage Loans and each REO Property remaining in the Trust Fund as contemplated
by clause (ii) of the succeeding paragraph by giving written notice to the
Trustee and the other parties hereto no later than 60 days prior to the
anticipated date of purchase; provided, however, that the Servicer may so elect
to purchase all of the Mortgage Loans and each REO Property remaining in the
Trust only on or after the first Distribution Date on which the aggregate Stated
Principal Balances of the Mortgage Loans and any REO Loans remaining in the
Trust Fund is less than 1% of the aggregate Cut-off Date Principal Balance of
the Mortgage Loans set forth in the Preliminary Statement. In the event that the
Servicer does not exercise such purchase option within 10 Business Days of such
Distribution Date, then the Special Servicer may purchase all of the Mortgage
Loans and REO Properties. If the Mortgage Loans and REO Properties are not
purchased by the Servicer or the Special Servicer pursuant to their respective
options, then the Controlling Class Certificateholder holding the largest
Certificate Balance of the Controlling Class, and the Holder of the majority
interest of the Class LR Certificates, in that order, may purchase all of the
Mortgage Loans and REO Properties then included in the Trust.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on
A-4-8
<PAGE>
behalf of the Trustee and required to be paid following the earlier of (i) the
final payment (or advance in respect thereof) or other liquidation of the last
Mortgage Loan or REO Property subject thereto or (ii) the purchase of all of the
assets of the Trust by the Servicer, the Special Servicer, the holders of the
Controlling Class or the holders of the Class LR Certificates. Written notice of
termination of the Pooling and Servicing Agreement will be given to each
Certificateholder, and the final distribution will be made only upon surrender
and cancellation of the Certificates at the office of the Certificate Registrar
or other location specified in such notice of termination. In no event, however,
will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-4-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement
By:
------------------------------------
AUTHORIZED OFFICER
Dated: June 7, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:
------------------------------------
AUTHORIZED SIGNATORY
A-4-10
<PAGE>
<TABLE>
<CAPTION>
================================= ================================ ============================= ===============================
<S> <C> <C> <C>
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred for,
or issued in exchange for or
upon transfer of any Remaining
Principal interest in this
Book-Entry Certificate
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
================================= ================================ ============================= ===============================
</TABLE>
A-4-11
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - Custodian (Cust)
------
under Uniform Gifts to
TEN ENT - as tenants by the Minors Act
entireties ---------
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-4-12
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to for the account
--------------------------------
of account number
-------------------------- -----------------------------------
or, if mailed by check, to . Statements should be
-----------------------------
mailed to . This information is provided by assignee named
---------------------
above, or , as its agent.
-------------------
A-4-13
<PAGE>
Exhibit A-5
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS D
THIS CLASS D CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT 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 MAY NOT BE PURCHASED OR TRANSFERRED (IN THE CASE OF THE INITIAL
SALE OR TRANSFERS TO PURCHASERS WHO TAKE IN DEFINITIVE FORM) UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER AN ERISA REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL
PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON
ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF
A-5-1
<PAGE>
INVESTMENT IN THE ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR
REGULATION ss. 2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF
ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF
SUBORDINATE CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE
PROHIBITED TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. ANY TRANSFEREE OF A BENEFICIAL INTEREST IN
THIS CERTIFICATE HELD IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE
SHALL BE DEEMED TO HAVE MADE THE FOREGOING REPRESENTATIONS.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON JUNE 7, 1999. THE INITIAL PER ANNUM RATE OF
INTEREST ON THIS CERTIFICATE IS 7.15%. BASED ON ITS ISSUE PRICE OF 98.94729%,
INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO
ITS INITIAL PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH ORIGINAL ISSUE
DISCOUNT FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION (AS
DEFINED IN THE PROSPECTUS SUPPLEMENT DATED JUNE 1, 1999 WITH RESPECT TO THE
OFFERING OF THE CERTIFICATES) USED TO PRICE THIS CERTIFICATE: (i) THE AMOUNT OF
OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY 1.3506%; (ii) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 7.27%; AND (iii) THE AMOUNT OF OID
ALLOCABLE TO THE FIRST ACCRUAL PERIOD (JUNE 7, 1999 TO JUNE 30, 1999) AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED
USING THE METHOD PRESCRIBED IN SECTION 1.1272-1(J), EXAMPLE 3 OF THE OID
REGULATIONS (AS DEFINED IN THE PROSPECTUS DATED MARCH 25, 1999), IS
APPROXIMATELY 0.0009%.
A-5-2
<PAGE>
========================================= ====================================
INITIAL PASS-THROUGH RATE: 7.15% APPROXIMATE AGGREGATE SCHEDULED
PRINCIPAL BALANCE OF THE MORTGAGE
DENOMINATION: $33,476,000 LOANS AFTER DEDUCTING PAYMENTS DUE
AND PREPAYMENTS RECEIVED ON OR
BEFORE CUT-OFF DATE:
$704,764,602
- ----------------------------------------- ------------------------------------
DATE OF POOLING AND SERVICING SERVICER: BANC ONE MORTGAGE
AGREEMENT: AS OF JUNE 1, 1999 CAPITAL MARKETS, LLC
- ----------------------------------------- ------------------------------------
CUT-OFF DATE: JUNE 1, 1999 OR WITH SPECIAL SERVICER: BANC ONE MORTGAGE
RESPECT TO ONE MORTGAGE LOAN, JUNE 5, CAPITAL MARKETS, LLC
1999.
- ----------------------------------------- ------------------------------------
CLOSING DATE: JUNE 7, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
- ----------------------------------------- ------------------------------------
FIRST DISTRIBUTION DATE: JULY 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
APPROXIMATE AGGREGATE CERTIFICATE CUSIP NO.
BALANCE OF THE CLASS D CERTIFICATES AS ---------------
OF THE CLOSING DATE: $33,476,000 CERTIFICATE NO.: D-1
----
========================================= ====================================
A-5-3
<PAGE>
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, monthly pay mortgage loans primarily secured by first
priority liens on fee simple or leasehold interests in multifamily, retail,
office, hospitality, industrial, credit tenant, health-care related, mixed use,
mobile home park and self storage properties (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Account, the Policy Escrow Account and the REO Accounts, formed and
sold by
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN PAINEWEBBER
MORTGAGE ACCEPTANCE CORPORATION V, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT
CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class D Certificates issued by the Trust created pursuant to the Pooling and
Servicing Agreement, dated as of June 1, 1999 (the "Pooling and Servicing
Agreement"), among PaineWebber Mortgage Acceptance Corporation V (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), LaSalle Bank National Association, as Trustee
(the "Trustee"), Banc One Mortgage Capital Markets, LLC, as special servicer
(the "Special Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer
(the "Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate, as specified on the face hereof, by the aggregate initial
Certificate Balance of the Class D Certificates. The Certificates are designated
as the PaineWebber Mortgage Acceptance
A-5-4
<PAGE>
Corporation V, Commercial Mortgage Pass-Through Certificates, Series 1999-C1 and
are issued in the Classes of Certificates as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement, as amended from
time to time, the Certificateholder by virtue of the acceptance hereof assents
and by which the Certificateholder is bound. IN THE CASE OF ANY CONFLICT BETWEEN
TERMS SPECIFIED IN THIS CERTIFICATE AND TERMS SPECIFIED IN THE POOLING AND
SERVICING AGREEMENT, THE TERMS OF THE POOLING AND SERVICING AGREEMENT SHALL
GOVERN.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums and Yield Maintenance Charges as provided
in the Pooling and Servicing Agreement. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class D
Pass-Through Rate, which shall equal the lesser of (x) the fixed rate per annum
specified above on the Certificate Balance of this Certificate and (y) the
weighted average of the Net Mortgage Rates of the Mortgage Loans (such Net
Mortgage Rates determined without taking into account any reductions thereto
resulting from modifications of the Mortgage Loans or otherwise following the
Cut-Off Date), immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage
A-5-5
<PAGE>
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee will beauthorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other income earned on funds in
the Certificate Account will be paid to the Servicer as set forth in the Pooling
and Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire transfer instructions in writing no less than five Business
Days prior to the related Record Date, by wire transfer of immediately available
funds to the account specified by such Certificateholder at a bank or other
entity having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust shall terminate. If any Certificates as
to which notice has been given pursuant to Section 4.01(i) of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Trustee,
directly or through an agent, shall take such steps to contact the remaining
non-tendering Certificateholders concerning 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 Certificateholder shall be
paid out of such funds. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust by the Trustee or the Paying Agent
as a result of such Certificateholder's
A-5-6
<PAGE>
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(i) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Class D Certificates will be issued in book-entry form through the
facilities of DTC in minimum Denominations of $25,000 initial Certificate
Balance, and in integral multiples of $1,000 in excess thereof, with one
Certificate of such Class evidencing an additional amount equal to the remainder
of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. With respect to any transfer or
exchange of any Certificate, the Certificate Registrar may require payment by
each transferor of a sum sufficient to cover any tax, expense or other
governmental charge payable in connection with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and Servicing Agreement, and none of the
Depositor, the Trustee, the Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar and any agent of any of them shall be affected by
notice to the contrary except as provided in Section 5.02(d) of the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the
A-5-7
<PAGE>
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC at all
times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust
Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC
pursuant to the Code that would be a claim against the Trust
Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC;
provided that (i) the Trustee has received an Opinion of
Counsel to the effect that (a) such action is necessary or
desirable to maintain such qualification or to avoid or
minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the
interests of any Certificateholder, and (ii) such change shall
not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such
effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) such change shall not, as
evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and
(b) such change shall not result in the withdrawal, downgrade
or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each
Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not
A-5-8
<PAGE>
less than 66 2/3% of the Percentage Interests of each Class of Certificates
affected thereby for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Holders of
Certificates of such Class; provided, however, that no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (in accordance with Section
11.01(g) of the Pooling and Servicing Agreement) to the effect that such
amendment or the exercise of any power granted to the Servicer, the Special
Servicer, the Depositor, the Trustee, the Fiscal Agent or any other specified
person in accordance with such amendment is permitted pursuant to the terms of
the Pooling and Servicing Agreement and will not result in the imposition of a
tax on the REMIC constituted by the Trust or cause the Trust (or either the
Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a REMIC.
The Servicer may, at its option, elect to purchase all of the
Mortgage Loans and each REO Property remaining in the Trust Fund as contemplated
by clause (ii) of the succeeding paragraph by giving written notice to the
Trustee and the other parties hereto no later than 60 days prior to the
anticipated date of purchase; provided, however, that the Servicer may so elect
to purchase all of the Mortgage Loans and each REO Property remaining in the
Trust only on or after the first Distribution Date on which the aggregate Stated
Principal Balances of the Mortgage Loans and any REO Loans remaining in the
Trust is less than 1% of the aggregate Cut-off Date Principal Balance of the
Mortgage Loans set forth in the Preliminary Statement. In the event that the
Servicer does not exercise such purchase option within 10 Business Days of such
Distribution Date, then the Special Servicer may purchase all of the Mortgage
Loans and REO Properties. If the Mortgage Loans and REO Properties are not
purchased by the Servicer or the Special Servicer pursuant to their respective
options, then the Controlling Class Certificateholder holding the largest
Certificate Balance of the Controlling Class, and the Holder of the majority
interest of the Class LR Certificates, in that order, may purchase all of the
Mortgage Loans and REO Properties then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on
A-5-9
<PAGE>
behalf of the Trustee and required to be paid following the earlier of (i) the
final payment (or advance in respect thereof) or other liquidation of the last
Mortgage Loan or REO Property subject thereto or (ii) the purchase of all of the
assets of the Trust by the Servicer, the Special Servicer, the holders of the
Controlling Class or the holders of the Class LR Certificates. Written notice of
termination of the Pooling and Servicing Agreement will be given to each
Certificateholder, and the final distribution will be made only upon surrender
and cancellation of the Certificates at the office of the Certificate Registrar
or other location specified in such notice of termination. In no event, however,
will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-5-10
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By:
-------------------------------------
AUTHORIZED OFFICER
Dated: June 7, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:
----------------------------------------
AUTHORIZED SIGNATORY
A-5-11
<PAGE>
<TABLE>
<CAPTION>
================================= ================================ ============================= ===============================
<S> <C> <C> <C>
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred for,
or issued in exchange for or
upon transfer of any Remaining
Principal interest in this
Book-Entry Certificate
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
================================= ================================ ============================= ===============================
</TABLE>
A-5-12
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - Custodian (Cust)
------
under Uniform Gifts to
TEN ENT - as tenants by the Minors Act
entireties -----------
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-5-13
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to for the account
--------------------------------
of account number or,
-------------------------- ------------------------------
if mailed by check, to . Statements should be
-----------------------------
mailed to . This information is provided by assignee named
---------------------
above, or , as its agent.
-------------------
A-5-14
<PAGE>
Exhibit A-6
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS E
THIS CLASS E CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (B) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN SUCH
PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND
DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT 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.
A-6-1
<PAGE>
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FORM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE INITIAL INVESTOR INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER
OF THIS CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS
DEEMED TO HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN
THE POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED (IN THE CASE OF THE INITIAL
SALE OR TRANSFERS TO PURCHASERS WHO TAKE IN DEFINITIVE FORM) UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER AN ERISA REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL
PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON
ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE
ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60. ANY TRANSFEREE OF A BENEFICIAL INTEREST IN THIS CERTIFICATE
HELD IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE SHALL BE DEEMED
TO HAVE MADE THE FOREGOING REPRESENTATIONS.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON JUNE 7, 1999. THE
A-6-2
<PAGE>
INITIAL PER ANNUM RATE OF INTEREST ON THIS CERTIFICATE IS 7.15%. BASED ON ITS
ISSUE PRICE OF 90.212920%, INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION
PRICE AT MATURITY EQUAL TO ITS INITIAL PRINCIPAL BALANCE, THIS CERTIFICATE IS
ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR FEDERAL INCOME TAX PURPOSES. ASSUMING
THAT THIS CERTIFICATE PAYS IN ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING
THE PREPAYMENT ASSUMPTION (AS DEFINED IN THE PROSPECTUS SUPPLEMENT DATED JUNE 1,
1999 WITH RESPECT TO THE OFFERING OF THE CERTIFICATES) USED TO PRICE THIS
CERTIFICATE: (i) THE AMOUNT OF OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL
BALANCE OF THIS CERTIFICATE IS APPROXIMATELY 10.0850%; (ii) THE ANNUAL YIELD OF
THIS CERTIFICATE TO CALL, COMPOUNDED MONTHLY, IS APPROXIMATELY 8.52%; AND (iii)
THE AMOUNT OF OID ALLOCABLE TO THE FIRST ACCRUAL PERIOD (JUNE 7, 1999 TO JUNE
30, 1999) AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE,
CALCULATED USING THE METHOD PRESCRIBED IN SECTION 1.1272-1(J), EXAMPLE 3 OF THE
OID REGULATIONS (AS DEFINED IN THE PROSPECTUS DATED MARCH 25, 1999), IS
APPROXIMATELY 0.0105%.
A-6-3
<PAGE>
========================================= ====================================
INITIAL PASS-THROUGH RATE: 7.15% APPROXIMATE AGGREGATE SCHEDULED
PRINCIPAL BALANCE OF THE MORTGAGE
DENOMINATION: $8,809,000 LOANS AFTER DEDUCTING PAYMENTS DUE
AND PREPAYMENTS RECEIVED ON OR
BEFORE CUT-OFF DATE:
$704,764,602
- ----------------------------------------- ------------------------------------
DATE OF POOLING AND SERVICING SERVICER: BANC ONE MORTGAGE
AGREEMENT: AS OF JUNE 1, 1999 CAPITAL MARKETS, LLC
- ----------------------------------------- ------------------------------------
CUT-OFF DATE: JUNE 1, 1999 OR WITH SPECIAL SERVICER: BANC ONE MORTGAGE
RESPECT TO ONE MORTGAGE LOAN, JUNE 5, CAPITAL MARKETS, LLC
1999.
- ----------------------------------------- ------------------------------------
CLOSING DATE: JUNE 7, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
- ----------------------------------------- ------------------------------------
FIRST DISTRIBUTION DATE: JULY 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
- ----------------------------------------- ------------------------------------
APPROXIMATE AGGREGATE CERTIFICATE CUSIP NO.
BALANCE OF THE CLASS E CERTIFICATES AS ---------------
OF THE CLOSING DATE: $8,809,000 CERTIFICATE NO.: E-1
----
========================================= ====================================
A-6-4
<PAGE>
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, monthly pay mortgage loans primarily secured by first
priority liens on fee simple or leasehold interests in multifamily, retail,
office, hospitality, industrial, credit tenant, health-care related, mixed use,
mobile home park and self storage properties (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Account, the Policy Escrow Account and the REO Accounts, formed and
sold by
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN PAINEWEBBER
MORTGAGE ACCEPTANCE CORPORATION V, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT
CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class E Certificates issued by the Trust created pursuant to the Pooling and
Servicing Agreement, dated as of June 1, 1999 (the "Pooling and Servicing
Agreement"), among PaineWebber Mortgage Acceptance Corporation V (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), LaSalle Bank National Association, as Trustee
(the "Trustee"), Banc One Mortgage Capital Markets, LLC, as special servicer
(the "Special Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer
(the "Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate, as specified on the face hereof, by the aggregate initial
Certificate Balance of the Class E Certificates. The Certificates are designated
as the PaineWebber Mortgage Acceptance
A-6-5
<PAGE>
Corporation V, Commercial Mortgage Pass-Through Certificates, Series 1999-C1 and
are issued in the Classes of Certificates as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement, as amended from
time to time, the Certificateholder by virtue of the acceptance hereof assents
and by which the Certificateholder is bound. IN THE CASE OF ANY CONFLICT BETWEEN
TERMS SPECIFIED IN THIS CERTIFICATE AND TERMS SPECIFIED IN THE POOLING AND
SERVICING AGREEMENT, THE TERMS OF THE POOLING AND SERVICING AGREEMENT SHALL
GOVERN.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums and Yield Maintenance Charges as provided
in the Pooling and Servicing Agreement. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class E
Pass-Through Rate, which shall equal the lesser of (x) the fixed rate per annum
specified above on the Certificate Balance of this Certificate and (y) the
weighted average of the Net Mortgage Rates of the Mortgage Loans (such Net
Mortgage Rates determined without taking into account any reductions thereto
resulting from modifications of the Mortgage Loans or otherwise following the
Cut-Off Date), immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage
A-6-6
<PAGE>
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee will beauthorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other income earned on funds in
the Certificate Account will be paid to the Servicer as set forth in the Pooling
and Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire transfer instructions in writing no less than five Business
Days prior to the related Record Date, by wire transfer of immediately available
funds to the account specified by such Certificateholder at a bank or other
entity having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust shall terminate. If any Certificates as
to which notice has been given pursuant to Section 4.01(i) of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Trustee,
directly or through an agent, shall take such steps to contact the remaining
non-tendering Certificateholders concerning 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 Certificateholder shall be
paid out of such funds. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust by the Trustee or the Paying Agent
as a result of such Certificateholder's
A-6-7
<PAGE>
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(i) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Class E Certificates will be issued in book-entry form through the
facilities of DTC in minimum Denominations of $250,000 initial Certificate
Balance, and in integral multiples of $1,000 in excess thereof, with one
Certificate of such Class evidencing an additional amount equal to the remainder
of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust for
any costs (including the cost of the Certificate Registrar's counsel's review of
the documents and any legal opinions, submitted by the transferor or transferee
to the Certificate Registrar as provided in Section 5.02(h) of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and Servicing Agreement, and none of the
Depositor, the Trustee, the Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar and any agent of any of them shall be affected by
notice to the contrary except as provided in Section 5.02(d) of the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
A-6-8
<PAGE>
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) such change shall not, as
evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and
(b) such change shall not result in the withdrawal, downgrade
or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each
Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
A-6-9
<PAGE>
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (in accordance with Section
11.01(g) of the Pooling and Servicing Agreement) to the effect that such
amendment or the exercise of any power granted to the Servicer, the Special
Servicer, the Depositor, the Trustee, the Fiscal Agent or any other specified
person in accordance with such amendment is permitted pursuant to the terms of
the Pooling and Servicing Agreement and will not result in the imposition of a
tax on the REMIC constituted by the Trust or cause the Trust (or either the
Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a REMIC.
The Servicer may, at its option, elect to purchase all of the
Mortgage Loans and each REO Property remaining in the Trust Fund as contemplated
by clause (ii) of the succeeding paragraph by giving written notice to the
Trustee and the other parties hereto no later than 60 days prior to the
anticipated date of purchase; provided, however, that the Servicer may so elect
to purchase all of the Mortgage Loans and each REO Property remaining in the
Trust only on or after the first Distribution Date on which the aggregate Stated
Principal Balances of the Mortgage Loans and any REO Loans remaining in the
Trust is less than 1% of the aggregate Cut-off Date Principal Balance of the
Mortgage Loans set forth in the Preliminary Statement. In the event that the
Servicer does not exercise such purchase option within 10 Business Days of such
Distribution Date, then the Special Servicer may purchase all of the Mortgage
Loans and REO Properties. If the Mortgage Loans and REO Properties are not
purchased by the Servicer or the Special Servicer pursuant to their respective
options, then the Controlling Class
A-6-10
<PAGE>
Certificateholder holding the largest Certificate Balance of the Controlling
Class, and the Holder of the majority interest of the Class LR Certificates, in
that order, may purchase all of the Mortgage Loans and REO Properties then
included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-6-11
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By:
-----------------------------------
AUTHORIZED OFFICER
Dated: June 7, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:
------------------------------------
AUTHORIZED SIGNATORY
A-6-12
<PAGE>
<TABLE>
<CAPTION>
================================= ================================ ============================= ===============================
<S> <C> <C> <C>
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred for,
or issued in exchange for or
upon transfer of any Remaining
Principal interest in this
Book-Entry Certificate
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
================================= ================================ ============================= ===============================
</TABLE>
A-6-13
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - Custodian (Cust)
------
under Uniform Gifts to
TEN ENT - as tenants by the Minors Act
entireties -----------
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-6-14
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to for the account
--------------------------------
of account number or,
-------------------------- ------------------------------
if mailed by check, to . Statements should be
-----------------------------
mailed to . This information is provided by assignee named
---------------------
above, or , as its agent.
-------------------
A-6-15
<PAGE>
Exhibit A-7
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS F
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (B) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN SUCH
PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION
A-7-1
<PAGE>
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO
THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS
CERTIFICATE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT 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 MAY NOT BE PURCHASED OR TRANSFERRED (IN THE CASE OF THE INITIAL
SALE OR TRANSFERS TO PURCHASERS WHO TAKE IN DEFINITIVE FORM) UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER AN ERISA REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL
PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON
ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE
ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60. ANY TRANSFEREE OF A BENEFICIAL INTEREST IN THIS CERTIFICATE
HELD IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE SHALL BE DEEMED
TO HAVE MADE THE FOREGOING REPRESENTATIONS.
A-7-2
<PAGE>
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON JUNE 7, 1999. THE INITIAL PER ANNUM RATE OF
INTEREST ON THIS CERTIFICATE IS 6.00%. BASED ON ITS ISSUE PRICE OF 67.97500%,
INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO
ITS INITIAL PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH ORIGINAL ISSUE
DISCOUNT FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION (AS
DEFINED IN THE PROSPECTUS SUPPLEMENT DATED JUNE 1, 1999 WITH RESPECT TO THE
OFFERING OF THE CERTIFICATES) USED TO PRICE THIS CERTIFICATE: (i) THE AMOUNT OF
OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY 32.2750%; (ii) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 10.62%; AND (iii) THE AMOUNT OF OID
ALLOCABLE TO THE FIRST ACCRUAL PERIOD (JUNE 7, 1999 TO JUNE 30, 1999) AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED
USING THE METHOD PRESCRIBED IN SECTION 1.1272-1(J), EXAMPLE 3 OF THE OID
REGULATIONS (AS DEFINED IN THE PROSPECTUS DATED MARCH 25, 1999), IS
APPROXIMATELY 0.0237%.
========================================= ====================================
INITIAL PASS-THROUGH RATE: 6.00% APPROXIMATE AGGREGATE SCHEDULED
PRINCIPAL BALANCE OF THE MORTGAGE
DENOMINATION: $35,238,000 LOANS AFTER DEDUCTING PAYMENTS DUE
AND PREPAYMENTS RECEIVED ON OR
BEFORE CUT-OFF DATE:
$704,764,602
- ----------------------------------------- ------------------------------------
DATE OF POOLING AND SERVICING SERVICER: BANC ONE MORTGAGE
AGREEMENT: AS OF JUNE 1, 1999 CAPITAL MARKETS, LLC
- ----------------------------------------- ------------------------------------
CUT-OFF DATE: JUNE 1, 1999 OR WITH SPECIAL SERVICER: BANC ONE MORTGAGE
RESPECT TO ONE MORTGAGE LOAN, JUNE 5, CAPITAL MARKETS, LLC
1999.
- ----------------------------------------- ------------------------------------
CLOSING DATE: JUNE 7, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
- ----------------------------------------- ------------------------------------
FIRST DISTRIBUTION DATE: JULY 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
- ----------------------------------------- ------------------------------------
APPROXIMATE AGGREGATE CERTIFICATE CUSIP NO.
BALANCE OF THE CLASS F CERTIFICATES AS ---------------
OF THE CLOSING DATE: $35,238,000 CERTIFICATE NO.: F-1
----
========================================= ====================================
A-7-3
<PAGE>
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, monthly pay mortgage loans primarily secured by first
priority liens on fee simple or leasehold interests in multifamily, retail,
office, hospitality, industrial, credit tenant, health-care related, mixed use,
mobile home park and self storage properties (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Account, the Policy Escrow Account and the REO Accounts, formed and
sold by
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN PAINEWEBBER
MORTGAGE ACCEPTANCE CORPORATION V, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT
CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class F Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 1999 (the "Pooling and Servicing
Agreement"), among PaineWebber Mortgage Acceptance Corporation V (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), LaSalle Bank National Association, as Trustee
(the "Trustee"), Banc One Mortgage Capital Markets, LLC, as special servicer
(the "Special Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer
(the "Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate, as specified on the face hereof, by the aggregate initial
Certificate Balance of the Class F Certificates. The Certificates are designated
as the PaineWebber Mortgage Acceptance
A-7-4
<PAGE>
Corporation V, Commercial Mortgage Pass-Through Certificates, Series 1999-C1 and
are issued in the Classes of Certificates as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement, as amended from
time to time, the Certificateholder by virtue of the acceptance hereof assents
and by which the Certificateholder is bound. IN THE CASE OF ANY CONFLICT BETWEEN
TERMS SPECIFIED IN THIS CERTIFICATE AND TERMS SPECIFIED IN THE POOLING AND
SERVICING AGREEMENT, THE TERMS OF THE POOLING AND SERVICING AGREEMENT SHALL
GOVERN.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums and Yield Maintenance Charges as provided
in the Pooling and Servicing Agreement. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class F
Pass-Through Rate, which shall equal the lesser of (x) the fixed rate per annum
specified above on the Certificate Balance of this Certificate and (y) the
weighted average of the Net Mortgage Rates of the Mortgage Loans (such Net
Mortgage Rates determined without taking into account any reductions thereto
resulting from modifications of the Mortgage Loans or otherwise following the
Cut-Off Date), immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage
A-7-5
<PAGE>
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee will beauthorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other income earned on funds in
the Certificate Account will be paid to the Servicer as set forth in the Pooling
and Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire transfer instructions in writing no less than five Business
Days prior to the related Record Date, by wire transfer of immediately available
funds to the account specified by such Certificateholder at a bank or other
entity having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust shall terminate. If any Certificates as
to which notice has been given pursuant to Section 4.01(i) of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Trustee,
directly or through an agent, shall take such steps to contact the remaining
non-tendering Certificateholders concerning 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 Certificateholder shall be
paid out of such funds. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust by the Trustee or the Paying Agent
as a result of such Certificateholder's
A-7-6
<PAGE>
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(i) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Class F Certificates will be issued in book-entry form through the
facilities of DTC in minimum Denominations of $250,000 initial Certificate
Balance, and in integral multiples of $1,000 in excess thereof, with one
Certificate of such Class evidencing an additional amount equal to the remainder
of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust for
any costs (including the cost of the Certificate Registrar's counsel's review of
the documents and any legal opinions, submitted by the transferor or transferee
to the Certificate Registrar as provided in Section 5.02(h) of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and Servicing Agreement, and none of the
Depositor, the Trustee, the Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar and any agent of any of them shall be affected by
notice to the contrary except as provided in Section 5.02(d) of the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
A-7-7
<PAGE>
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) such change shall not, as
evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and
(b) such change shall not result in the withdrawal, downgrade
or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each
Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
A-7-8
<PAGE>
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (in accordance with Section
11.01(g) of the Pooling and Servicing Agreement) to the effect that such
amendment or the exercise of any power granted to the Servicer, the Special
Servicer, the Depositor, the Trustee, the Fiscal Agent or any other specified
person in accordance with such amendment is permitted pursuant to the terms of
the Pooling and Servicing Agreement and will not result in the imposition of a
tax on the REMIC constituted by the Trust or cause the Trust (or either the
Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a REMIC.
The Servicer may, at its option, elect to purchase all of the
Mortgage Loans and each REO Property remaining in the Trust Fund as contemplated
by clause (ii) of the succeeding paragraph by giving written notice to the
Trustee and the other parties hereto no later than 60 days prior to the
anticipated date of purchase; provided, however, that the Servicer may so elect
to purchase all of the Mortgage Loans and each REO Property remaining in the
Trust only on or after the first Distribution Date on which the aggregate Stated
Principal Balances of the Mortgage Loans and any REO Loans remaining in the
Trust is less than 1% of the aggregate Cut-off Date Principal Balance of the
Mortgage Loans set forth in the Preliminary Statement. In the event that the
Servicer does not exercise such purchase option within 10 Business Days of such
Distribution Date, then the Special Servicer may purchase all of the Mortgage
Loans and REO Properties. If the Mortgage Loans and REO Properties are not
purchased by the Servicer or the Special Servicer pursuant to their respective
options, then the Controlling Class
A-7-9
<PAGE>
Certificateholder holding the largest Certificate Balance of the Controlling
Class, and the Holder of the majority interest of the Class LR Certificates, in
that order, may purchase all of the Mortgage Loans and REO Properties then
included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-7-10
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By:
-----------------------------------
AUTHORIZED OFFICER
Dated: June 7, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:
------------------------------------
AUTHORIZED SIGNATORY
A-7-11
<PAGE>
<TABLE>
<CAPTION>
================================= ================================ ============================= ===============================
<S> <C> <C> <C>
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred for,
or issued in exchange for or
upon transfer of any Remaining
Principal interest in this
Book-Entry Certificate
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
================================= ================================ ============================= ===============================
</TABLE>
A-7-12
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - Custodian (Cust)
------
under Uniform Gifts to
TEN ENT - as tenants by the Minors Act
entireties -----------
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of Assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-7-13
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to for the account
--------------------------------
of account number or,
-------------------------- ------------------------------
if mailed by check, to . Statements should be
-----------------------------
mailed to . This information is provided by assignee named
---------------------
above, or , as its agent.
-------------------
A-7-14
<PAGE>
Exhibit A-8
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS G
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (B) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN SUCH
PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND
DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
A-8-1
<PAGE>
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT 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 MAY NOT BE PURCHASED OR TRANSFERRED (IN THE CASE OF THE INITIAL
SALE OR TRANSFERS TO PURCHASERS WHO TAKE IN DEFINITIVE FORM) UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER AN ERISA REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL
PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON
ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE
ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60. ANY TRANSFEREE OF A BENEFICIAL INTEREST IN THIS CERTIFICATE
HELD IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE SHALL BE DEEMED
TO HAVE MADE THE FOREGOING REPRESENTATIONS.
A-8-2
<PAGE>
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON JUNE 7, 1999. THE INITIAL PER ANNUM RATE OF
INTEREST ON THIS CERTIFICATE IS 6.00%. BASED ON ITS ISSUE PRICE OF 52.45938%,
INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO
ITS INITIAL PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH ORIGINAL ISSUE
DISCOUNT FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION (AS
DEFINED IN THE PROSPECTUS SUPPLEMENT DATED JUNE 1, 1999 WITH RESPECT TO THE
OFFERING OF THE CERTIFICATES) USED TO PRICE THIS CERTIFICATE: (i) THE AMOUNT OF
OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY 47.7906%; (ii) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 13.10%; AND (iii) THE AMOUNT OF OID
ALLOCABLE TO THE FIRST ACCRUAL PERIOD (JUNE 7, 1999 TO JUNE 30, 1999) AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED
USING THE METHOD PRESCRIBED IN SECTION 1.1272-1(J), EXAMPLE 3 OF THE OID
REGULATIONS (AS DEFINED IN THE PROSPECTUS DATED MARCH 25, 1999), IS
APPROXIMATELY 0.0169%.
========================================= ====================================
INITIAL PASS-THROUGH RATE: 6.00% APPROXIMATE AGGREGATE SCHEDULED
PRINCIPAL BALANCE OF THE MORTGAGE
DENOMINATION: $24,666,000 LOANS AFTER DEDUCTING PAYMENTS DUE
AND PREPAYMENTS RECEIVED ON OR
BEFORE CUT-OFF DATE:
$704,764,602
- ----------------------------------------- ------------------------------------
DATE OF POOLING AND SERVICING SERVICER: BANC ONE MORTGAGE
AGREEMENT: AS OF JUNE 1, 1999 CAPITAL MARKETS, LLC
- ----------------------------------------- ------------------------------------
CUT-OFF DATE: JUNE 1, 1999 OR WITH SPECIAL SERVICER: BANC ONE MORTGAGE
RESPECT TO ONE MORTGAGE LOAN, JUNE 5, CAPITAL MARKETS, LLC
1999.
- ----------------------------------------- ------------------------------------
CLOSING DATE: JUNE 7, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
- ----------------------------------------- ------------------------------------
FIRST DISTRIBUTION DATE: JULY 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
- ----------------------------------------- ------------------------------------
APPROXIMATE AGGREGATE CERTIFICATE CUSIP NO.
BALANCE OF THE CLASS G CERTIFICATES AS ---------------
OF THE CLOSING DATE: $24,666,000 CERTIFICATE NO.: G-1
----
========================================= ====================================
A-8-3
<PAGE>
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, monthly pay mortgage loans primarily secured by first
priority liens on fee simple or leasehold interests in multifamily, retail,
office, hospitality, industrial, credit tenant, health-care related, mixed use,
mobile home park and self storage properties (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Account, the Policy Escrow Account and the REO Accounts, formed and
sold by
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN PAINEWEBBER
MORTGAGE ACCEPTANCE CORPORATION V, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT
CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class G Certificates issued by the Trust created pursuant to the Pooling and
Servicing Agreement, dated as of June 1, 1999 (the "Pooling and Servicing
Agreement"), among PaineWebber Mortgage Acceptance Corporation V (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), LaSalle Bank National Association, as Trustee
(the "Trustee"), Banc One Mortgage Capital Markets, LLC, as special servicer
(the "Special Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer
(the "Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate, as specified on the face hereof, by the aggregate initial
Certificate Balance of the Class G Certificates. The Certificates are designated
as the PaineWebber Mortgage Acceptance
A-8-4
<PAGE>
Corporation V, Commercial Mortgage Pass-Through Certificates, Series 1999-C1 and
are issued in the Classes of Certificates as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement, as amended from
time to time, the Certificateholder by virtue of the acceptance hereof assents
and by which the Certificateholder is bound. IN THE CASE OF ANY CONFLICT BETWEEN
TERMS SPECIFIED IN THIS CERTIFICATE AND TERMS SPECIFIED IN THE POOLING AND
SERVICING AGREEMENT, THE TERMS OF THE POOLING AND SERVICING AGREEMENT SHALL
GOVERN.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums and Yield Maintenance Charges as provided
in the Pooling and Servicing Agreement. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class G
Pass-Through Rate, which shall equal the lesser of (x) the fixed rate per annum
specified above on the Certificate Balance of this Certificate and (y) the
weighted average of the Net Mortgage Rates of the Mortgage Loans (such Net
Mortgage Rates determined without taking into account any reductions thereto
resulting from modifications of the Mortgage Loans or otherwise following the
Cut-Off Date), immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage
A-8-5
<PAGE>
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee will beauthorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other income earned on funds in
the Certificate Account will be paid to the Servicer as set forth in the Pooling
and Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire transfer instructions in writing no less than five Business
Days prior to the related Record Date, by wire transfer of immediately available
funds to the account specified by such Certificateholder at a bank or other
entity having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust shall terminate. If any Certificates as
to which notice has been given pursuant to Section 4.01(i) of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Trustee,
directly or through an agent, shall take such steps to contact the remaining
non-tendering Certificateholders concerning 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 Certificateholder shall be
paid out of such funds. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust by the Trustee or the Paying Agent
as a result of such Certificateholder's
A-8-6
<PAGE>
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(i) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Class G Certificates will be issued in book-entry form through the
facilities of DTC in minimum Denominations of $250,000 initial Certificate
Balance, and in integral multiples of $1,000 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust for
any costs (including the cost of the Certificate Registrar's counsel's review of
the documents and any legal opinions, submitted by the transferor or transferee
to the Certificate Registrar as provided in Section 5.02(h) of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and Servicing Agreement, and none of the
Depositor, the Trustee, the Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar and any agent of any of them shall be affected by
notice to the contrary except as provided in Section 5.02(d) of the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
A-8-7
<PAGE>
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) such change shall not, as
evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and
(b) such change shall not result in the withdrawal, downgrade
or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each
Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
A-8-8
<PAGE>
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (in accordance with Section
11.01(g) of the Pooling and Servicing Agreement) to the effect that such
amendment or the exercise of any power granted to the Servicer, the Special
Servicer, the Depositor, the Trustee, the Fiscal Agent or any other specified
person in accordance with such amendment is permitted pursuant to the terms of
the Pooling and Servicing Agreement and will not result in the imposition of a
tax on the REMIC constituted by the Trust or cause the Trust (or either the
Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a REMIC.
The Servicer may, at its option, elect to purchase all of the
Mortgage Loans and each REO Property remaining in the Trust Fund as contemplated
by clause (ii) of the succeeding paragraph by giving written notice to the
Trustee and the other parties hereto no later than 60 days prior to the
anticipated date of purchase; provided, however, that the Servicer may so elect
to purchase all of the Mortgage Loans and each REO Property remaining in the
Trust only on or after the first Distribution Date on which the aggregate Stated
Principal Balances of the Mortgage Loans and any REO Loans remaining in the
Trust is less than 1% of the aggregate Cut-off Date Principal Balance of the
Mortgage Loans set forth in the Preliminary Statement. In the event that the
Servicer does not exercise such purchase option within 10 Business Days of such
Distribution Date, then the Special Servicer may purchase all of the Mortgage
Loans and REO Properties. If the Mortgage Loans and REO Properties are not
purchased by the Servicer or the Special Servicer pursuant to their respective
options, then the Controlling Class
A-8-9
<PAGE>
Certificateholder holding the largest Certificate Balance of the Controlling
Class, and the Holder of the majority interest of the Class LR Certificates, in
that order, may purchase all of the Mortgage Loans and REO Properties then
included in the Trust.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-8-10
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By:
-----------------------------------
AUTHORIZED OFFICER
Dated: June 7, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:
------------------------------------
AUTHORIZED SIGNATORY
A-8-11
<PAGE>
<TABLE>
<CAPTION>
================================= ================================ ============================= ===============================
<S> <C> <C> <C>
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred for,
or issued in exchange for or
upon transfer of any Remaining
Principal interest in this
Book-Entry Certificate
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
================================= ================================ ============================= ===============================
</TABLE>
A-8-12
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - Custodian (Cust)
------
under Uniform Gifts to
TEN ENT - as tenants by the Minors Act
entireties -----------
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of Assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-8-13
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to for the account
--------------------------------
of account number or,
-------------------------- ------------------------------
if mailed by check, to . Statements should be
-----------------------------
mailed to . This information is provided by assignee named
---------------------
above, or , as its agent.
-------------------
A-8-14
<PAGE>
Exhibit A-9
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS H
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (B) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN SUCH
PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND
DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE
A-9-1
<PAGE>
BALANCE BY INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC
REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT 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 MAY NOT BE PURCHASED OR TRANSFERRED (IN THE CASE OF THE INITIAL
SALE OR TRANSFERS TO PURCHASERS WHO TAKE IN DEFINITIVE FORM) UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER AN ERISA REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL
PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON
ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE
ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60. ANY TRANSFEREE OF A BENEFICIAL INTEREST IN THIS CERTIFICATE
HELD IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE SHALL BE DEEMED
TO HAVE MADE THE FOREGOING REPRESENTATIONS.
A-9-2
<PAGE>
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON JUNE 7, 1999. THE INITIAL PER ANNUM RATE OF
INTEREST ON THIS CERTIFICATE IS 6.00%. BASED ON ITS ISSUE PRICE OF 38.76709%,
INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO
ITS INITIAL PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH ORIGINAL ISSUE
DISCOUNT FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION (AS
DEFINED IN THE PROSPECTUS SUPPLEMENT DATED JUNE 1, 1999 WITH RESPECT TO THE
OFFERING OF THE CERTIFICATES) USED TO PRICE THIS CERTIFICATE: (i) THE AMOUNT OF
OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY 61.4829%; (ii) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 16.61%; AND (iii) THE AMOUNT OF OID
ALLOCABLE TO THE FIRST ACCRUAL PERIOD (JUNE 7, 1999 TO JUNE 30, 1999) AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED
USING THE METHOD PRESCRIBED IN SECTION 1.1272-1(J), EXAMPLE 3 OF THE OID
REGULATIONS (AS DEFINED IN THE PROSPECTUS DATED MARCH 25, 1999), IS
APPROXIMATELY 0.0086%.
========================================= ====================================
INITIAL PASS-THROUGH RATE: 6.00% APPROXIMATE AGGREGATE SCHEDULED
PRINCIPAL BALANCE OF THE MORTGAGE
DENOMINATION: $7,400,000 LOANS AFTER DEDUCTING PAYMENTS DUE
AND PREPAYMENTS RECEIVED ON OR
BEFORE CUT-OFF DATE:
$704,764,602
- ----------------------------------------- ------------------------------------
DATE OF POOLING AND SERVICING SERVICER: BANC ONE MORTGAGE
AGREEMENT: AS OF JUNE 1, 1999 CAPITAL MARKETS, LLC
- ----------------------------------------- ------------------------------------
CUT-OFF DATE: JUNE 1, 1999 OR WITH SPECIAL SERVICER: BANC ONE MORTGAGE
RESPECT TO ONE MORTGAGE LOAN, JUNE 5, CAPITAL MARKETS, LLC
1999.
- ----------------------------------------- ------------------------------------
CLOSING DATE: JUNE 7, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
- ----------------------------------------- ------------------------------------
FIRST DISTRIBUTION DATE: JULY 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
- ----------------------------------------- ------------------------------------
APPROXIMATE AGGREGATE CERTIFICATE CUSIP NO.
BALANCE OF THE CLASS H CERTIFICATES AS ---------------
OF THE CLOSING DATE: $7,400,000 CERTIFICATE NO.: H-1
----
========================================= ====================================
A-9-3
<PAGE>
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, monthly pay mortgage loans primarily secured by first
priority liens on fee simple or leasehold interests in multifamily, retail,
office, hospitality, industrial, credit tenant, health-care related, mixed use,
mobile home park and self storage properties (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Account, the Policy Escrow Account and the REO Accounts, formed and
sold by
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN PAINEWEBBER
MORTGAGE ACCEPTANCE CORPORATION V, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT
CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class H Certificates issued by the Trust created pursuant to the Pooling and
Servicing Agreement, dated as of February 1, 1999 (the "Pooling and Servicing
Agreement"), among PaineWebber Mortgage Acceptance Corporation V (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), LaSalle Bank National Association, as Trustee
(the "Trustee"), GE Capital Realty Group, Inc., as special servicer (the
"Special Servicer"), GE Capital Loan Services, Inc., as servicer (the
"Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate, as specified on the face hereof, by the aggregate initial
Certificate Balance of the Class H Certificates. The Certificates are designated
as the PaineWebber Mortgage Acceptance
A-9-4
<PAGE>
Corporation V, Commercial Mortgage Pass-Through Certificates, Series 1999-C1 and
are issued in the Classes of Certificates as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement, as amended from
time to time, the Certificateholder by virtue of the acceptance hereof assents
and by which the Certificateholder is bound. IN THE CASE OF ANY CONFLICT BETWEEN
TERMS SPECIFIED IN THIS CERTIFICATE AND TERMS SPECIFIED IN THE POOLING AND
SERVICING AGREEMENT, THE TERMS OF THE POOLING AND SERVICING AGREEMENT SHALL
GOVERN.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums and Yield Maintenance Charges as provided
in the Pooling and Servicing Agreement. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class H
Pass-Through Rate, which shall equal the lesser of (x) the fixed rate per annum
specified above on the Certificate Balance of this Certificate and (y) the
weighted average of the Net Mortgage Rates of the Mortgage Loans (such Net
Mortgage Rates determined without taking into account any reductions thereto
resulting from modifications of the Mortgage Loans or otherwise following the
Cut-Off Date), immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage
A-9-5
<PAGE>
Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee will beauthorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other income earned on funds in
the Certificate Account will be paid to the Servicer as set forth in the Pooling
and Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire transfer instructions in writing no less than five Business
Days prior to the related Record Date, by wire transfer of immediately available
funds to the account specified by such Certificateholder at a bank or other
entity having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust shall terminate. If any Certificates as
to which notice has been given pursuant to Section 4.01(i) of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Trustee,
directly or through an agent, shall take such steps to contact the remaining
non-tendering Certificateholders concerning 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 Certificateholder shall be
paid out of such funds. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust by the Trustee or the Paying Agent
as a result of such Certificateholder's
A-9-6
<PAGE>
failure to surrender its Certificate(s) for final payment thereof in accordance
with Section 4.01(i) of the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Class H Certificates will be issued in book-entry form through the
facilities of DTC in minimum Denominations of $250,000 initial Certificate
Balance, and in integral multiples of $1,000 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust for
any costs (including the cost of the Certificate Registrar's counsel's review of
the documents and any legal opinions, submitted by the transferor or transferee
to the Certificate Registrar as provided in Section 5.02(h) of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and Servicing Agreement, and none of the
Depositor, the Trustee, the Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar and any agent of any of them shall be affected by
notice to the contrary except as provided in Section 5.02(d) of the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
A-9-7
<PAGE>
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) such change shall not, as
evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and
(b) such change shall not result in the withdrawal, downgrade
or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each
Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
A-9-8
<PAGE>
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (in accordance with Section
11.01(g) of the Pooling and Servicing Agreement) to the effect that such
amendment or the exercise of any power granted to the Servicer, the Special
Servicer, the Depositor, the Trustee, the Fiscal Agent or any other specified
person in accordance with such amendment is permitted pursuant to the terms of
the Pooling and Servicing Agreement and will not result in the imposition of a
tax on the REMIC constituted by the Trust or cause the Trust (or either the
Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a REMIC.
The Servicer may, at its option, elect to purchase all of the
Mortgage Loans and each REO Property remaining in the Trust as contemplated by
clause (ii) of the succeeding paragraph by giving written notice to the Trustee
and the other parties hereto no later than 60 days prior to the anticipated date
of purchase; provided, however, that the Servicer may so elect to purchase all
of the Mortgage Loans and each REO Property remaining in the Trust only on or
after the first Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust is less
than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage Loans
set forth in the Preliminary Statement. In the event that the Servicer does not
exercise such purchase option within 10 Business Days of such Distribution Date,
then the Special Servicer may purchase all of the Mortgage Loans and REO
Properties. If the Mortgage Loans and REO Properties are not purchased by the
Servicer or the Special Servicer pursuant to their respective options, then the
Controlling Class
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<PAGE>
Certificateholder holding the largest Certificate Balance of the Controlling
Class, and the Holder of the majority interest of the Class LR Certificates, in
that order, may purchase all of the Mortgage Loans and REO Properties then
included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-9-10
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By:
-----------------------------------
AUTHORIZED OFFICER
Dated: June 7, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:
------------------------------------
AUTHORIZED SIGNATORY
A-9-11
<PAGE>
<TABLE>
<CAPTION>
================================= ================================ ============================= ===============================
<S> <C> <C> <C>
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred for,
or issued in exchange for or
upon transfer of any Remaining
Principal interest in this
Book-Entry Certificate
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
================================= ================================ ============================= ===============================
</TABLE>
A-9-12
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - Custodian (Cust)
------
under Uniform Gifts to
TEN ENT - as tenants by the Minors Act
entireties -----------
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of Assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-9-13
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to for the account
--------------------------------
of account number or,
-------------------------- ------------------------------
if mailed by check, to . Statements should be
-----------------------------
mailed to . This information is provided by assignee named
---------------------
above, or , as its agent.
-------------------
A-9-14
<PAGE>
Exhibit A-10
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS I
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A OR (B) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (OR AN ENTITY ALL OF THE EQUITY OWNERS OF WHICH COME WITHIN SUCH
PARAGRAPHS) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO THE COMPLETION AND
DELIVERY BY THE TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THIS CLASS I CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
A-10-1
<PAGE>
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE PAYING AGENT. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR
INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT 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 MAY NOT BE PURCHASED OR TRANSFERRED (IN THE CASE OF THE INITIAL
SALE OR TRANSFERS TO PURCHASERS WHO TAKE IN DEFINITIVE FORM) UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER AN ERISA REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (i) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL
PLAN (AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR
LOCAL LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE
FOREGOING PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (ii) A PERSON
ACTING ON BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE
ENTITY BY SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION ss.
2510.3-101), OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL
ACCOUNT UNDER CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE
CERTIFICATES BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60. ANY TRANSFEREE OF A BENEFICIAL INTEREST IN THIS CERTIFICATE
HELD IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE SHALL BE DEEMED
TO HAVE MADE THE FOREGOING REPRESENTATIONS.
A-10-2
<PAGE>
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON JUNE 7, 1999. THE INITIAL PER ANNUM RATE OF
INTEREST ON THIS CERTIFICATE IS 6.00%. BASED ON ITS ISSUE PRICE OF 26.78156%,
INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO
ITS INITIAL PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH ORIGINAL ISSUE
DISCOUNT FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION (AS
DEFINED IN THE PROSPECTUS SUPPLEMENT DATED JUNE 1, 1999 WITH RESPECT TO THE
OFFERING OF THE CERTIFICATES) USED TO PRICE THIS CERTIFICATE: (i) THE AMOUNT OF
OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY 73.4684%; (ii) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 22.85%; AND (iii) THE AMOUNT OF OID
ALLOCABLE TO THE FIRST ACCRUAL PERIOD (JUNE 7, 1999 TO JUNE 30, 1999) AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED
USING THE METHOD PRESCRIBED IN SECTION 1.1272-1(J), EXAMPLE 3 OF THE OID
REGULATIONS (AS DEFINED IN THE PROSPECTUS DATED MARCH 25, 1999), IS
APPROXIMATELY 0.0156%.
========================================= ====================================
INITIAL PASS-THROUGH RATE: 6.00% APPROXIMATE AGGREGATE SCHEDULED
PRINCIPAL BALANCE OF THE MORTGAGE
DENOMINATION: $11,983,602 LOANS AFTER DEDUCTING PAYMENTS DUE
AND PREPAYMENTS RECEIVED ON OR
BEFORE CUT-OFF DATE:
$704,764,602
- ----------------------------------------- ------------------------------------
DATE OF POOLING AND SERVICING SERVICER: BANC ONE MORTGAGE
AGREEMENT: AS OF JUNE 1, 1999 CAPITAL MARKETS, LLC
- ----------------------------------------- ------------------------------------
CUT-OFF DATE: JUNE 1, 1999 OR WITH SPECIAL SERVICER: BANC ONE MORTGAGE
RESPECT TO ONE MORTGAGE LOAN, JUNE 5, CAPITAL MARKETS, LLC
1999.
- ----------------------------------------- ------------------------------------
CLOSING DATE: JUNE 7, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
- ----------------------------------------- ------------------------------------
FIRST DISTRIBUTION DATE: JULY 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
- ----------------------------------------- ------------------------------------
APPROXIMATE AGGREGATE CERTIFICATE CUSIP NO.
BALANCE OF THE CLASS I CERTIFICATES AS ---------------
OF THE CLOSING DATE: $11,983,602 CERTIFICATE NO.: I-1
----
========================================= ====================================
A-10-3
<PAGE>
CLASS I CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, monthly pay mortgage loans primarily secured by first
priority liens on fee simple or leasehold interests in multifamily, retail,
office, hospitality, industrial, credit tenant, health-care related, mixed use,
mobile home park and self storage properties (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Account, the Policy Escrow Account and the REO Accounts, formed and
sold by
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN PAINEWEBBER
MORTGAGE ACCEPTANCE CORPORATION V, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT
CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class I Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 1999 (the "Pooling and Servicing
Agreement"), among PaineWebber Mortgage Acceptance Corporation V (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), LaSalle Bank National Association, as Trustee
(the "Trustee"), Banc One Mortgage Capital Markets, LLC (the "Special
Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer (the "Servicer")
and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A summary of
certain of the pertinent provisions of the Pooling and Servicing Agreement is
set forth hereafter. To the extent not defined herein, the capitalized terms
used herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate, as specified on the face hereof, by the aggregate initial
Certificate Balance of the Class I Certificates. The Certificates are designated
as the PaineWebber Mortgage Acceptance
A-10-4
<PAGE>
Corporation V, Commercial Mortgage Pass-Through Certificates, Series 1999-C1 and
are issued in the Classes of Certificates as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which Pooling and Servicing Agreement, as amended from
time to time, the Certificateholder by virtue of the acceptance hereof assents
and by which the Certificateholder is bound. IN THE CASE OF ANY CONFLICT BETWEEN
TERMS SPECIFIED IN THIS CERTIFICATE AND TERMS SPECIFIED IN THE POOLING AND
SERVICING AGREEMENT, THE TERMS OF THE POOLING AND SERVICING AGREEMENT SHALL
GOVERN.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums or Yield Maintenance Charges as provided
in the Pooling and Servicing Agreement. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class I
Pass-Through Rate, which shall equal the lesser of (x) the fixed rate per annum
specified above on the Certificate Balance of this Certificate and (y) the
weighted average of the Net Mortgage Rates of the Mortgage Loans (such Net
Mortgage Rates determined without taking into account any reductions thereto
resulting from modifications of the Mortgage Loans or otherwise following the
Cut-Off Date), immediately prior to each Distribution Date. Principal and
interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
A-10-5
<PAGE>
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee will beauthorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other income earned on funds in
the Certificate Account will be paid to the Servicer as set forth in the Pooling
and Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire transfer instructions in writing no less than five Business
Days prior to the related Record Date, by wire transfer of immediately available
funds to the account specified by such Certificateholder at a bank or other
entity having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust shall terminate. If any Certificates as
to which notice has been given pursuant to Section 4.01(i) of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Trustee,
directly or through an agent, shall take such steps to contact the remaining
non-tendering Certificateholders concerning 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 Certificateholder shall be
paid out of such funds. No interest shall accrue or be payable to any
Certificateholder on any
A-10-6
<PAGE>
amount held in trust by the Trustee or the Paying Agent as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with Section 4.01(i) of the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Class I Certificates will be issued in book-entry form through the
facilities of DTC in minimum Denominations of $250,000 initial Certificate
Balance, and in integral multiples of $1,000 in excess thereof, with one
Certificate of each such Class evidencing an additional amount equal to the
remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust for
any costs (including the cost of the Certificate Registrar's counsel's review of
the documents and any legal opinions, submitted by the transferor or transferee
to the Certificate Registrar as provided in Section 5.02(h) of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and Servicing Agreement, and none of the
Depositor, the Trustee, the Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar and any agent of any of them shall be affected by
notice to the contrary except as provided in Section 5.02(d) of the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
A-10-7
<PAGE>
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) such change shall not, as
evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and
(b) such change shall not result in the withdrawal, downgrade
or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each
Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
A-10-8
<PAGE>
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (in accordance with Section
11.01(g) of the Pooling and Servicing Agreement) to the effect that such
amendment or the exercise of any power granted to the Servicer, the Special
Servicer, the Depositor, the Trustee, the Fiscal Agent or any other specified
person in accordance with such amendment is permitted pursuant to the terms of
the Pooling and Servicing Agreement and will not result in the imposition of a
tax on the REMIC constituted by the Trust or cause the Trust (or either the
Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a REMIC.
The Servicer may, at its option, elect to purchase all of the
Mortgage Loans and each REO Property remaining in the Trust as contemplated by
clause (ii) of the succeeding paragraph by giving written notice to the Trustee
and the other parties hereto no later than 60 days prior to the anticipated date
of purchase; provided, however, that the Servicer may so elect to purchase all
of the Mortgage Loans and each REO Property remaining in the Trust only on or
after the first Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust is less
than 1% of the aggregate Cut-off Date Principal Balance of the Mortgage Loans
set forth in the Preliminary Statement. In the event that the Servicer does not
exercise such purchase option within 10 Business Days of such Distribution Date,
then the Special Servicer may purchase all of the Mortgage Loans and REO
Properties. If the Mortgage Loans and REO Properties are not purchased by the
Servicer or the Special Servicer pursuant to their respective options, then the
Controlling Class
A-10-9
<PAGE>
Certificateholder holding the largest Certificate Balance of the Controlling
Class, and the Holder of the majority interest of the Class LR Certificates, in
that order, may purchase all of the Mortgage Loans and REO Properties then
included in the Trust.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-10-10
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By:
-----------------------------------
AUTHORIZED OFFICER
Dated: June 7, 1999
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS I CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:
------------------------------------
AUTHORIZED SIGNATORY
A-10-11
<PAGE>
<TABLE>
<CAPTION>
================================= ================================ ============================= ===============================
<S> <C> <C> <C>
Date Certificate Balance of Amount of Book-
Definitive Certificates Entry Certificate Notation Made By
exchanged or transferred for,
or issued in exchange for or
upon transfer of any Remaining
Principal interest in this
Book-Entry Certificate
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
- --------------------------------- -------------------------------- ----------------------------- -------------------------------
================================= ================================ ============================= ===============================
</TABLE>
A-10-12
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - Custodian (Cust)
------
under Uniform Gifts to
TEN ENT - as tenants by the Minors Act
entireties -----------
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of Assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-10-13
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to for the account
--------------------------------
of account number or,
-------------------------- ------------------------------
if mailed by check, to . Statements should be
-----------------------------
mailed to . This information is provided by assignee named
---------------------
above, or , as its agent.
-------------------
A-10-14
<PAGE>
Exhibit A-11
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS X
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS X
CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES FOR APPLYING THE U.S.
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS CERTIFICATE.
THIS CERTIFICATE IS ISSUED ON JUNE 7, 1999. THE INITIAL PER ANNUM RATE OF
INTEREST ON THIS CERTIFICATE IS 0.5994%. BASED ON ITS ISSUE PRICE OF 4.19749%,
INCLUDING ACCRUED INTEREST, AND A STATED REDEMPTION PRICE AT MATURITY EQUAL TO
ITS INITIAL PRINCIPAL BALANCE, THIS CERTIFICATE IS ISSUED WITH ORIGINAL ISSUE
DISCOUNT FOR FEDERAL INCOME TAX PURPOSES. ASSUMING THAT THIS CERTIFICATE PAYS IN
ACCORDANCE WITH PROJECTED CASH FLOWS REFLECTING THE PREPAYMENT ASSUMPTION (AS
DEFINED IN THE PROSPECTUS SUPPLEMENT DATED JUNE 1, 1999 WITH RESPECT TO THE
OFFERING OF THE CERTIFICATES) USED TO PRICE THIS CERTIFICATE: (i) THE AMOUNT OF
OID AS A PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE IS
APPROXIMATELY 2.5415%; (ii) THE ANNUAL YIELD OF THIS CERTIFICATE TO CALL,
COMPOUNDED MONTHLY, IS APPROXIMATELY 9.48%; AND (iii) THE AMOUNT OF OID
ALLOCABLE TO THE FIRST ACCRUAL PERIOD (JUNE 7, 1999 TO JUNE 30, 1999) AS A
PERCENTAGE OF THE INITIAL PRINCIPAL BALANCE OF THIS CERTIFICATE, CALCULATED
USING THE METHOD PRESCRIBED IN SECTION 1.1272-1(J), EXAMPLE 3 OF THE OID
REGULATIONS (AS DEFINED IN THE PROSPECTUS DATED MARCH 25, 1999), IS
APPROXIMATELY 0.0077%.
A-11-1
<PAGE>
========================================== ===================================
INITIAL PASS-THROUGH RATE: 0.5994% APPROXIMATE AGGREGATE SCHEDULED
PRINCIPAL BALANCE OF THE MORTGAGE
The Class X Pass-Through Rate with LOANS AFTER DEDUCTING PAYMENTS DUE
respect to any Distribution Date shall AND PREPAYMENTS RECEIVED ON OR
be equal to the excess, if any, of (i) BEFORE CUT-OFF DATE: $704,764,602
the weighted average for such
Distribution Date of the Mortgage Rates
of the Mortgage Loans, net of the
related Servicing Fee Rate, over (ii)
the weighted average, for such
Distribution Date, of the Pass-Through
Rates of the other Classes of
Certificates.
DENOMINATION: $200,000,000
- ------------------------------------------ -----------------------------------
DATE OF POOLING AND SERVICING SERVICER: BANC ONE MORTGAGE
AGREEMENT: AS OF JUNE 1, 1999 CAPITAL MARKETS, LLC
- ------------------------------------------ -----------------------------------
CUT-OFF DATE: JUNE 1, 1999 OR WITH SPECIAL SERVICER: BANC ONE MORTGAGE
RESPECT TO ONE MORTGAGE LOAN, JUNE 5, CAPITAL MARKETS, LLC
1999.
- ------------------------------------------ -----------------------------------
CLOSING DATE: JUNE 7, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
- ------------------------------------------ -----------------------------------
FIRST DISTRIBUTION DATE: JULY 15, 1999 FISCAL AGENT: ABN AMRO BANK N.V.
PAYING AGENT: LASALLE BANK NATIONAL
ASSOCIATION
- ------------------------------------------ -----------------------------------
APPROXIMATE AGGREGATE NOTIONAL CUSIP NO.
AMOUNT OF THE CLASS X CERTIFICATES AS ----------
OF THE CLOSING DATE: $704,764,602 CERTIFICATE NO.: X-1
---
========================================== ===================================
A-11-2
<PAGE>
CLASS X CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, monthly pay mortgage loans primarily secured by first
priority liens on fee simple or leasehold interests in multifamily, retail,
office, hospitality, industrial, credit tenant, health-care related, mixed use,
mobile home park and self storage properties (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Intreest Account, the Policy Escrow Account and the REO Accounts, formed and
sold by
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN PAINEWEBBER
MORTGAGE ACCEPTANCE CORPORATION V, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT
CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X Certificates issued by the Trust created pursuant to the Pooling and
Servicing Agreement, dated as of June 1, 1999 (the "Pooling and Servicing
Agreement"), among PaineWebber Mortgage Acceptance Corporation V (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), LaSalle Bank National Association, as Trustee
(the "Trustee"), Banc One Mortgage Capital Markets, LLC, as special servicer
(the "Special Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer
(the "Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate, as specified on the face hereof, by the aggregate initial Notional
Amount of the Class X Certificates. The Certificates are designated as the
PaineWebber Mortgage Acceptance
A-11-3
<PAGE>
Corporation V, Commercial Mortgage Pass-Through Certificates, Series 1999-C1 and
are issued in the Classes of Certificates as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. IN THE CASE OF ANY CONFLICT BETWEEN TERMS SPECIFIED IN THIS CERTIFICATE
AND TERMS SPECIFIED IN THE POOLING AND SERVICING AGREEMENT, THE TERMS OF THE
POOLING AND SERVICING AGREEMENT SHALL GOVERN.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Paying Agent shall distribute to the Person in whose name this Certificate
is registered as of the related Record Date, an amount equal to such Person's
pro rata share (based on the Percentage Interest represented by this
Certificate) of that portion of the aggregate amount of principal and interest
then distributable, if any, allocable to the Class of Certificates of the same
Class as this Certificate for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums and Yield Maintenance Charges as provided
in the Pooling and Servicing Agreement. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date in an amount equal to
the excess, if any, of (i) the weighted average of the Net Mortgage Rates of the
Mortgage Loans (such Net Mortgage Rates determined without taking into account
any reductions thereto resulting from modifications of the Mortgage Loans or
otherwise following the Cut-Off Date) as of the immediately preceding
Distribution Date after giving effect to distributions of principal on such
Distribution Date, over (ii) the weighted average of the Pass-Through Rates of
the other Classes of Certificates (other than the Residual Certificates).
Interest allocated to this Certificate on any Distribution Date will be in an
amount due to this Certificate's pro rata share of the Available Distribution
Amount to be distributed on the Certificates of this Class as of such
Distribution Date, with a final distribution to be made upon retirement of this
Certificate as set forth in the Pooling and Servicing Agreement.
A-11-4
<PAGE>
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee will beauthorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other income earned on funds in
the Certificate Account will be paid to the Servicer as set forth in the Pooling
and Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire transfer instructions in writing no less than five Business
Days prior to the related Record Date, by wire transfer of immediately available
funds to the account specified by such Certificateholder at a bank or other
entity having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust shall terminate. If any Certificates as
to which notice has been given pursuant to Section 4.01(i) of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Trustee,
directly or through an agent, shall take such steps to contact the remaining
non-tendering Certificateholders concerning 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 Certificateholder shall be
paid out of such funds. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust by the Trustee or the Paying Agent
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 4.01(i) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in
A-11-5
<PAGE>
whole or in part (with a denomination equal to any authorized denomination) by
surrendering such Certificate at the Registrar Office or at the office of any
successor Certificate Registrar or transfer agent appointed by the Certificate
Registrar together with an instrument of transfer, duly endorsed by, or
accompanied by an assignment in the form set forth below or other written
instrument of transfer in form satisfactory to the Certificate Registrar duly
executed by the Holder hereof or such Holder's attorney-in-fact duly authorized
in writing, in the case of a transfer, and a written request for exchange in the
case of exchange.
Subject to the terms of the Pooling and Servicing Agreement,
the Class X Certificates will be issued in book-entry form through the
facilities of DTC in minimum Denominations of $25,000 initial Notional Amount
and in integral multiples of $1,000 in excess thereof, with one Certificate of
such Class evidencing an additional amount equal to the remainder of the initial
Notional Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust for
any costs (including the cost of the Certificate Registrar's counsel's review of
the documents and any legal opinions, submitted by the transferor or transferee
to the Certificate Registrar as provided in Section 5.02(h) of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this Certificate is registered
as the owner hereof for the purpose of receiving distributions pursuant to
Section 4.01 of the Pooling and Servicing Agreement and for all other purposes
whatsoever, except as and to the extent provided in the definition of
"Certificateholder" in the Pooling and Servicing Agreement, and none of the
Depositor, the Trustee, the Servicer, the Special Servicer, the Paying Agent,
the Certificate Registrar and any agent of any of them shall be affected by
notice to the contrary except as provided in Section 5.02(d) of the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the
A-11-6
<PAGE>
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC at all
times that any Certificate is outstanding or to avoid or
minimize the risk of the imposition of any tax on the Trust
Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC
pursuant to the Code that would be a claim against the Trust
Fund or either the Lower-Tier REMIC or the Upper-Tier REMIC;
provided that (i) the Trustee has received an Opinion of
Counsel to the effect that (a) such action is necessary or
desirable to maintain such qualification or to avoid or
minimize the risk of the imposition of any such tax, (b) such
action will not adversely affect in any material respect the
interests of any Certificateholder, and (ii) such change shall
not result in the withdrawal, downgrade or qualification of
the then-current rating assigned to any Class of Certificates,
as evidenced by a letter from each Rating Agency to such
effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) such change shall not, as
evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and
(b) such change shall not result in the withdrawal, downgrade
or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each
Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not
A-11-7
<PAGE>
less than 66 2/3% of the Percentage Interests of each Class of Certificates
affected thereby for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Pooling and Servicing
Agreement or of modifying in any manner the rights of the Holders of
Certificates of such Class; provided, however, that no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (in accordance with Section
11.01(g) of the Pooling and Servicing Agreement) to the effect that such
amendment or the exercise of any power granted to the Servicer, the Special
Servicer, the Depositor, the Trustee, the Fiscal Agent or any other specified
person in accordance with such amendment is permitted pursuant to the terms of
the Pooling and Servicing Agreement and will not result in the imposition of a
tax on the REMIC constituted by the Trust or cause the Trust (or either the
Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a REMIC.
The Servicer may, at its option, elect to purchase all of the
Mortgage Loans and each REO Property remaining in the Trust Fund as contemplated
by clause (ii) of the succeeding paragraph by giving written notice to the
Trustee and the other parties hereto no later than 60 days prior to the
anticipated date of purchase; provided, however, that the Servicer may so elect
to purchase all of the Mortgage Loans and each REO Property remaining in the
Trust only on or after the first Distribution Date on which the aggregate Stated
Principal Balances of the Mortgage Loans and any REO Loans remaining in the
Trust is less than 1% of the aggregate Cut-off Date Principal Balance of the
Mortgage Loans set forth in the Preliminary Statement. In the event that the
Servicer does not exercise such purchase option within 10 Business Days of such
Distribution Date, then the Special Servicer may purchase all of the Mortgage
Loans and REO Properties. If the Mortgage Loans and REO Properties are not
purchased by the Servicer or the Special Servicer pursuant to their respective
options, then the Controlling Class Certificateholder holding the largest
Certificate Balance of the Controlling Class, and the Holder of the majority
interest of the Class LR Certificates, in that order, may purchase all of the
Mortgage Loans and REO Properties then included in the Trust.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on
A-11-8
<PAGE>
behalf of the Trustee and required to be paid following the earlier of (i) the
final payment (or advance in respect thereof) or other liquidation of the last
Mortgage Loan or REO Property subject thereto or (ii) the purchase of all of the
assets of the Trust by the Servicer, the Special Servicer, the holders of the
Controlling Class or the holders of the Class LR Certificates. Written notice of
termination of the Pooling and Servicing Agreement will be given to each
Certificateholder, and the final distribution will be made only upon surrender
and cancellation of the Certificates at the office of the Certificate Registrar
or other location specified in such notice of termination. In no event, however,
will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust as Trustee under the Pooling and Servicing Agreement and makes no
representation or warranty as to any of the statements contained herein or the
validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-11-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By:
-------------------------------------
AUTHORIZED OFFICER
Dated: , 1999
-------------
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:
-------------------------------------
AUTHORIZED SIGNATORY
A-11-10
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - Custodian (Cust)
-----
under Uniform Gifts to
TEN ENT - as tenants by the Minors Act
entireties ---------
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
A-11-11
<PAGE>
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to for the account
--------------------------------
of account number or,
-------------------------- ------------------------------
if mailed by check, to . Statements should be
-----------------------------
mailed to . This information is provided by assignee named
---------------------
above, or , as its agent.
-------------------
A-11-12
<PAGE>
Exhibit A-12
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS R
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF IS DEEMED TO AGREE NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH
ALL APPLICABLE STATE SECURITIES LAWS AND FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, SUBJECT TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE OR ANY
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL,
STATE OR , LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
A-12-1
<PAGE>
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON INVESTING THE
ASSETS OF A PLAN.
====================================== ====================================
PERCENTAGE INTEREST EVIDENCED APPROXIMATE AGGREGATE SCHEDULED
BY THIS CERTIFICATE: 100% PRINCIPAL BALANCE OF THE MORTGAGE
LOANS AFTER DEDUCTING PAYMENTS
DUE AND PREPAYMENTS RECEIVED ON
OR BEFORE CUT-OFF DATE:
$704,764,602
- -------------------------------------- ------------------------------------
DATE OF POOLING AND SERVICING SERVICER: BANC ONE MORTGAGE
AGREEMENT: AS OF JUNE 1, 1999 CAPITAL MARKETS, LLC
- -------------------------------------- ------------------------------------
CUT-OFF DATE: JUNE 1, 1999, OR WITH SPECIAL SERVICER: BANC ONE
RESPECT TO ONE MORTGAGE LOAN, MORTGAGE CAPITAL MARKETS, LLC
JUNE 5, 1999.
- -------------------------------------- ------------------------------------
CLOSING DATE: JUNE 7, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
- -------------------------------------- ------------------------------------
FIRST DISTRIBUTION DATE: JULY 15, FISCAL AGENT: ABN AMRO BANK N.V.
1999 PAYING AGENT: LASALLE BANK
NATIONAL ASSOCIATION
- -------------------------------------- ------------------------------------
CERTIFICATE NO.: R-1
---
====================================== ====================================
A-12-2
<PAGE>
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, monthly pay mortgage loans primarily secured by first
priority liens on fee simple or leasehold interests in multifamily, retail,
office, hospitality, industrial, credit tenant, health-care related, mixed use,
mobile home park and self storage properties (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Account, the Policy Escrow Account and the REO Accounts, formed and
sold by
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN PAINEWEBBER
MORTGAGE ACCEPTANCE CORPORATION V, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT
--------------------------
is the registered owner of the interest evidenced by this Certificate in the
Class R Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 1999 (the "Pooling and Servicing
Agreement"), among PaineWebber Mortgage Acceptance Corporation V (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), LaSalle Bank National Association, as Trustee
(the "Trustee"), Banc One Mortgage Capital Markets, LLC, as special servicer
(the "Special Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer
(the "Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Percentage Interest
represented by this Certificate, as specified on the face hereof, by 100% R
Certificates. The Certificates are designated as the PaineWebber Mortgage
Acceptance Corporation V, Commercial Mortgage
A-12-3
<PAGE>
Pass-Through Certificates, Series 1999-C1 and are issued in the Classes of
Certificates as specifically set forth in the Pooling and Servicing Agreement.
The Certificates will evidence in the aggregate 100% of the beneficial ownership
of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. IN THE CASE OF ANY CONFLICT BETWEEN TERMS SPECIFIED IN THIS CERTIFICATE
AND TERMS SPECIFIED IN THE POOLING AND SERVICING AGREEMENT, THE TERMS OF THE
POOLING AND SERVICING AGREEMENT SHALL GOVERN.
This Class R Certificate is a "residual interest" in a "real
estate mortgage investment conduit," as those terms are defined, respectively,
in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as
amended. Each Holder of this Certificate, by acceptance hereof, agrees to treat,
and take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income. The Holder of the largest Percentage Interest in the Class R
Certificates shall be designated, in the in the manner provided under Treasury
Regulations Section 1.860F-4(d) and temporary Treasury Regulations Section
301.6231(a)(7)-1T, as the "tax matters person" of the Upper-Tier REMIC. By their
acceptance thereof, the Holders of the largest Percentage Interest of the Class
R Certificates hereby agrees irrevocably to appoint the Trustee as their agent
to perform all of the duties of the "tax matters person" for the Upper-Tier
REMIC.
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent to
the extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the Distribution Date to the Person in whose name this Certificate
is registered as of the related Record Date. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee will beauthorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other income earned on funds in
the Certificate Account will be paid to the Servicer as set forth in the Pooling
and Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to
A-12-4
<PAGE>
Certificateholders, such purposes including reimbursement of certain expenses
incurred with respect to the servicing of the Mortgage Loans and administration
of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire transfer instructions in writing no less than five Business
Days prior to the related Record Date, by wire transfer of immediately available
funds to the account specified by such Certificateholder at a bank or other
entity having appropriate facilities therefor. The final distribution on this
Certificate shall be made in like manner, but only upon presentment and
surrender of this Certificate at the location specified in the notice to
Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust shall terminate. If any Certificates as
to which notice has been given pursuant to Section 4.01(i) of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Trustee,
directly or through an agent, shall take such steps to contact the remaining
non-tendering Certificateholders concerning 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 Certificateholder shall be
paid out of such funds. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust by the Trustee or the Paying Agent
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 4.01(i) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Each Person who has or who acquires any Ownership Interest in
a Class R 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 Section 5.02(d) of the
Pooling and Servicing Agreement to deliver payments to a
A-12-5
<PAGE>
Person other than such Person. The rights of each Person acquiring any Ownership
Interest in a Class R Certificate are expressly subject to the following
provisions: (A) No Person holding or acquiring any Ownership Interest in a Class
R Certificate shall be a Disqualified Organization or agent thereof (including a
nominee, middleman or similar person) (an "Agent"), a Plan or a Person acting on
behalf of or investing the assets of a Plan (such Plan or Person, an "ERISA
Prohibited Holder") or a Non-U.S. Person and shall promptly notify the Servicer,
the Trustee and the Certificate Registrar of any change or impending change to
such status; (B) In connection with any proposed Transfer of any Ownership
Interest in a Class R Certificate, the Certificate Registrar shall require
delivery to it, and no Transfer of any Class R Certificate shall be registered
until the Certificate Registrar receives, an affidavit substantially in the form
attached to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer
Affidavit") from the proposed Transferee, in form and substance satisfactory to
the Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of an
Ownership Interest in a Class R Certificate to such proposed Transferee shall be
effected; and (D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (1) to require a Transfer Affidavit from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest in such Class R Certificate and (2) not to transfer its Ownership
Interest in such Class R Certificate unless it provides to the Certificate
Registrar a letter substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit D-2 (a "Transferor Letter") certifying that,
among other things, it has no actual knowledge that such prospective Transferee
is a Disqualified Organization, an Agent thereof, an ERISA Prohibited Holder or
a Non-U.S. Person.
Subject to the terms of the Pooling and Servicing Agreement,
the Class R and Class LR Certificates will be issuable only in one or more
Definitive Certificates in denominations representing Percentage Interests of
not less than 25%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust for
any costs (including the cost of the Certificate Registrar's counsel's review of
the documents and any legal opinions, submitted by the transferor or transferee
to the Certificate Registrar as provided in Section 5.02(h) of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the Certificate Registrar and any agents
of any of them may treat the person in whose name this
A-12-6
<PAGE>
Certificate is registered as the owner hereof for the purpose of receiving
distributions pursuant to Section 4.01 of the Pooling and Servicing Agreement
and for all other purposes whatsoever, except as and to the extent provided in
the definition of "Certificateholder" in the Pooling and Servicing Agreement,
and none of the Depositor, the Trustee, the Servicer, the Special Servicer, the
Paying Agent, the Certificate Registrar and any agent of any of them shall be
affected by notice to the contrary except as provided in Section 5.02(d) of the
Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) such change shall not, as
evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and
(b) such change shall not result in the withdrawal, downgrade
or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each
Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating Agency to such effect,
and (b) such change shall not, as evidenced by an Opinion
A-12-7
<PAGE>
of Counsel, cause the Trust Fund, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than
the Transferor) to be subject to a federal tax caused by a
Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (in accordance with Section
11.01(g) of the Pooling and Servicing Agreement) to the effect that such
amendment or the exercise of any power granted to the Servicer, the Special
Servicer, the Depositor, the Trustee, the Fiscal Agent or any other specified
person in accordance with such amendment is permitted pursuant to the terms of
the Pooling and Servicing Agreement and will not result in the imposition of a
tax on the REMIC constituted by the Trust or cause the Trust (or either the
Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as a REMIC.
A-12-8
<PAGE>
The Servicer may, at its option, elect to purchase all of the
Mortgage Loans and each REO Property remaining in the Trust Fund as contemplated
by clause (ii) of the succeeding paragraph by giving written notice to the
Trustee and the other parties hereto no later than 60 days prior to the
anticipated date of purchase; provided, however, that the Servicer may so elect
to purchase all of the Mortgage Loans and each REO Property remaining in the
Trust Fund only on or after the first Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is less than 1% of the aggregate Cut-off Date Principal Balance
of the Mortgage Loans set forth in the Preliminary Statement. In the event that
the Servicer does not exercise such purchase option within 10 Business Days of
such Distribution Date, then the Special Servicer may purchase all of the
Mortgage Loans and REO Properties. If the Mortgage Loans and REO Properties are
not purchased by the Servicer or the Special Servicer pursuant to their
respective options, then the Controlling Class Certificateholder holding the
largest Certificate Balance of the Controlling Class, and the Holder of the
majority interest of the Class LR Certificates, in that order, may purchase all
of the Mortgage Loans and REO Properties then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust Fund as Trustee under the Pooling and Servicing Agreement and makes
no representation or warranty as to any of the statements contained herein or
the validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-12-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By:
-------------------------------------
AUTHORIZED OFFICER
Dated: , 1999
-------------
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:
-------------------------------------
AUTHORIZED SIGNATORY
A-12-10
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - Custodian (Cust)
-----
under Uniform Gifts to
TEN ENT - as tenants by the Minors Act
entireties ---------
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
SIGNATURE GUARANTEED
A-12-11
<PAGE>
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to for the account
--------------------------------
of account number or,
-------------------------- ------------------------------
if mailed by check, to . Statements should be
-----------------------------
mailed to . This information is provided by assignee named
---------------------
above, or , as its agent.
-------------------
A-12-12
<PAGE>
Exhibit A-13
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C1, CLASS LR
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF IS DEEMED TO AGREE NOT
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH
ALL APPLICABLE STATE SECURITIES LAWS AND FOR SO LONG AS THIS CERTIFICATE IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, SUBJECT TO THE COMPLETION AND DELIVERY BY THE
TRANSFEROR TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE OR ANY
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL,
STATE OR , LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON INVESTING THE
ASSETS OF A PLAN.
A-13-1
<PAGE>
====================================== ====================================
PERCENTAGE INTEREST EVIDENCED APPROXIMATE AGGREGATE SCHEDULED
BY THIS CERTIFICATE: 100% PRINCIPAL BALANCE OF THE MORTGAGE
LOANS AFTER DEDUCTING PAYMENTS
DUE AND PREPAYMENTS RECEIVED ON
OR BEFORE CUT-OFF DATE:
$704,764,602
- -------------------------------------- ------------------------------------
DATE OF POOLING AND SERVICING SERVICER: BANC ONE MORTGAGE
AGREEMENT: AS OF JUNE 1, 1999 CAPITAL MARKETS, LLC
- -------------------------------------- ------------------------------------
CUT-OFF DATE: JUNE 1, 1999, OR WITH SPECIAL SERVICER: BANC ONE
RESPECT TO ONE MORTGAGE LOAN, MORTGAGE CAPITAL MARKETS, LLC
JUNE 5, 1999.
- -------------------------------------- ------------------------------------
CLOSING DATE: JUNE 7, 1999 TRUSTEE: LASALLE BANK NATIONAL
ASSOCIATION
- -------------------------------------- ------------------------------------
FIRST DISTRIBUTION DATE: JULY 15, FISCAL AGENT: ABN AMRO BANK N.V.
1999 PAYING AGENT: LASALLE BANK
NATIONAL ASSOCIATION
- -------------------------------------- ------------------------------------
CERTIFICATE NO.: LR-1
----
====================================== ====================================
A-13-2
<PAGE>
CLASS LR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of fixed rate, monthly pay mortgage loans primarily secured by first
priority liens on fee simple or leasehold interests in multifamily, retail,
office, hospitality, industrial, credit tenant, health-care related, mixed use,
mobile home park and self storage properties (the "Mortgage Loans"), all
payments on or collections in respect of the Mortgage Loans due after the
Cut-off Date, all REO Properties and revenues received in respect thereof, the
mortgagee's rights under the Insurance Policies, any Assignment of Leases, and
any guaranties, escrow accounts or other collateral as security for the Mortgage
Loans, and such amounts as shall from time to time be held in the Certificate
Account, the Distribution Accounts, the Interest Reserve Account, the Excess
Interest Account, the Policy Escrow Account and the REO Accounts, formed and
sold by
PAINEWEBBER MORTGAGE ACCEPTANCE CORPORATION V
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN PAINEWEBBER
MORTGAGE ACCEPTANCE CORPORATION V, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE, THE FISCAL AGENT OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE
NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES.
THIS CERTIFIES THAT
--------------------
is the registered owner of the interest evidenced by this Certificate in the
Class LR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of June 1, 1999 (the "Pooling and Servicing
Agreement"), among PaineWebber Mortgage Acceptance Corporation V (hereinafter
called the "Depositor", which term includes any successor entity under the
Pooling and Servicing Agreement), LaSalle Bank National Association, as Trustee
(the "Trustee"), Banc One Mortgage Capital Markets, LLC, as special servicer
(the "Special Servicer"), Banc One Mortgage Capital Markets, LLC, as servicer
(the "Servicer") and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). A
summary of certain of the pertinent provisions of the Pooling and Servicing
Agreement is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Percentage Interest
represented by of this Certificate, as specified on the face hereof, by 100%.
The Certificates are designated as the
A-13-3
<PAGE>
PaineWebber Mortgage Acceptance Corporation V, Commercial Mortgage Pass-Through
Certificates, Series 1999-C1 and are issued in the Classes of Certificates as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. IN THE CASE OF ANY CONFLICT BETWEEN TERMS SPECIFIED IN THIS CERTIFICATE
AND TERMS SPECIFIED IN THE POOLING AND SERVICING AGREEMENT, THE TERMS OF THE
POOLING AND SERVICING AGREEMENT SHALL GOVERN.
This Class LR Certificate is a "residual interest" in a "real
estate mortgage investment conduit," as those terms are defined, respectively,
in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as
amended. Each Holder of this Certificate, by acceptance hereof, agrees to treat,
and take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income. The Holder of the largest Percentage Interest in the Class
LR Certificates shall be designated, in the in the manner provided under
Treasury Regulations Section 1.860F-4(d) and temporary Treasury Regulations
Section 301.6231(a)(7)-1T, as the "tax matters person" of the Lower-Tier REMIC.
By their acceptance thereof, the Holders of the largest Percentage Interest of
the Class LR Certificates hereby agrees irrevocably to appoint the Trustee as
their agent to perform all of the duties of the "tax matters person" for the
Lower-Tier REMIC.
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Paying Agent to
the extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the Distribution Date to the Person in whose name this Certificate
is registered as of the related Record Date. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account will be
held and maintained by the Servicer in the name of the Trustee on behalf of the
holders of the Certificates specified in the Pooling and Servicing Agreement and
the Servicer will be authorized to make withdrawals therefrom and the
Distribution Accounts will be held and maintained by the Trustee on behalf of
the holders of the Certificates and the Trustee will beauthorized to make
withdrawals therefrom. Amounts on deposit in the Certificate Account may be
invested in Permitted Investments. Interest or other income earned on funds in
the Certificate Account will be paid to the Servicer as set forth in the Pooling
and Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the
A-13-4
<PAGE>
Certificate Account shall be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement of
certain expenses incurred with respect to the servicing of the Mortgage Loans
and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing no less than five Business Days prior
to the related Record Date, by wire transfer of immediately available funds to
the account specified by such Certificateholder at a bank or other entity having
appropriate facilities therefor. The final distribution on this Certificate
shall be made in like manner, but only upon presentment and surrender of this
Certificate at the location specified in the notice to Certificateholders of
such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust shall terminate. If any Certificates as
to which notice has been given pursuant to Section 4.01(i) of the Pooling and
Servicing Agreement shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders to surrender their
Certificates for cancellation in order to receive the final distribution with
respect thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Trustee,
directly or through an agent, shall take such steps to contact the remaining
non-tendering Certificateholders concerning 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 Certificateholder shall be
paid out of such funds. No interest shall accrue or be payable to any
Certificateholder on any amount held in trust by the Trustee or the Paying Agent
as a result of such Certificateholder's failure to surrender its Certificate(s)
for final payment thereof in accordance with Section 4.01(i) of the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, a Certificateholder may transfer or
exchange this Certificate in whole or in part (with a denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar together with an instrument of transfer,
duly endorsed by, or accompanied by an assignment in the form set forth below or
other written instrument of transfer in form satisfactory to the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney-in-fact
duly authorized in writing, in the case of a transfer, and a written request for
exchange in the case of exchange.
Each Person who has or who acquires any Ownership Interest in
a Class LR 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
A-13-5
<PAGE>
Agent under Section 5.02(d) of the Pooling and Servicing Agreement to deliver
payments to a Person other than such Person. The rights of each Person acquiring
any Ownership Interest in a Class LR Certificate are expressly subject to the
following provisions: (A) No Person holding or acquiring any Ownership Interest
in a Class LR Certificate shall be a Disqualified Organization or agent thereof
(including a nominee, middleman or similar person) (an "Agent"), a Plan or a
Person acting on behalf of or investing the assets of a Plan (such Plan or
Person, an "ERISA Prohibited Holder") or a Non-U.S. Person and shall promptly
notify the Servicer, the Trustee and the Certificate Registrar of any change or
impending change to such status; (B) In connection with any proposed Transfer of
any Ownership Interest in a Class LR Certificate, the Certificate Registrar
shall require delivery to it, and no Transfer of any Class LR Certificate shall
be registered until the Certificate Registrar receives, an affidavit
substantially in the form attached to the Pooling and Servicing Agreement as
Exhibit D-1 (a "Transfer Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing and
warranting, among other things, that such Transferee is not a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person,
and that it has reviewed the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement and agrees to be bound by them; (C) Notwithstanding the
delivery of a Transfer Affidavit by a proposed Transferee under clause (B)
above, if the Certificate Registrar has actual knowledge that the proposed
Transferee is a Disqualified Organization or Agent thereof, an ERISA Prohibited
Holder or a Non-U.S. Person, no Transfer of an Ownership Interest in a Class LR
Certificate to such proposed Transferee shall be effected; and (D) Each Person
holding or acquiring any Ownership Interest in a Class LR Certificate shall
agree (1) to require a Transfer Affidavit from any prospective Transferee to
whom such Person attempts to transfer its Ownership Interest in such Class LR
Certificate and (2) not to transfer its Ownership Interest in such Class LR
Certificate unless it provides to the Certificate Registrar a letter
substantially in the form attached to the Pooling and Servicing Agreement as
Exhibit D-2 (a "Transferor Letter") certifying that, among other things, it has
no actual knowledge that such prospective Transferee is a Disqualified
Organization, an Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person.
Subject to the terms of the Pooling and Servicing Agreement,
the Class R and Class LR Certificates will be issuable only in one or more
Definitive Certificates in denominations representing Percentage Interests of
not less than 25%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than as defined in this paragraph. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust for
any costs (including the cost of the Certificate Registrar's counsel's review of
the documents and any legal opinions, submitted by the transferor or transferee
to the Certificate Registrar as provided in Section 5.02(h) of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
Prior to due presentation of a Certificate for registration of
transfer, the Depositor, the Trustee, the Fiscal Agent, the Servicer, the
Special Servicer, the Paying Agent and the
A-13-6
<PAGE>
Certificate Registrar and any agents of any of them may treat the person in
whose name this Certificate is registered as the owner hereof for the purpose of
receiving distributions pursuant to Section 4.01 of the Pooling and Servicing
Agreement and for all other purposes whatsoever, except as and to the extent
provided in the definition of "Certificateholder" in the Pooling and Servicing
Agreement, and none of the Depositor, the Trustee, the Servicer, the Special
Servicer, the Paying Agent, the Certificate Registrar and any agent of any of
them shall be affected by notice to the contrary except as provided in Section
5.02(d) of the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement may be amended from time
to time by the parties hereto, without the consent of any of the
Certificateholders:
a. to cure any ambiguity;
b. to correct or supplement any provisions therein, which may
be inconsistent with any other provisions therein or to
correct any error;
c. to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the
qualification of the Trust Fund or either the Lower-Tier REMIC
or the Upper-Tier REMIC as a REMIC at all times that any
Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code
that would be a claim against the Trust Fund or either the
Lower-Tier REMIC or the Upper-Tier REMIC; provided that (i)
the Trustee has received an Opinion of Counsel to the effect
that (a) such action is necessary or desirable to maintain
such qualification or to avoid or minimize the risk of the
imposition of any such tax, (b) such action will not adversely
affect in any material respect the interests of any
Certificateholder, and (ii) such change shall not result in
the withdrawal, downgrade or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by
a letter from each Rating Agency to such effect;
d. to change the timing and/or nature of deposits into the
Certificate Account, the Distribution Accounts or REO Account
or to change the name in which the Certificate Account is
maintained; provided that (a) such change shall not, as
evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Certificateholder and
(b) such change shall not result in the withdrawal, downgrade
or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each
Rating Agency to such effect;
e. to modify, eliminate or add to the provisions of Section
5.02(d) or any other provision thereof restricting transfer of
the Residual Certificates by virtue of their being the REMIC
"residual interests,"; provided that (a) such change shall not
result in the withdrawal, downgrade or qualification of the
then-current rating assigned to any Class of Certificates, as
evidenced by a letter from each Rating
A-13-7
<PAGE>
Agency to such effect, and (b) such change shall not, as
evidenced by an Opinion of Counsel, cause the Trust Fund, the
Lower-Tier REMIC, the Upper-Tier REMIC or any of the
Certificateholders (other than the Transferor) to be subject
to a federal tax caused by a Transfer to a Person that is a
Disqualified Organization or a Non-U.S. Person;
f. to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement
which shall not be materially inconsistent with the provisions
of the Pooling and Servicing Agreement; provided, however,
that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the
interests of any Certificateholder not consenting thereto; and
g. to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each
Class of Certificates by each Rating Agency.
The Pooling and Servicing Agreement may also be amended from
time to time by the parties hereto with the consent of the Holders of
Certificates evidencing in the aggregate not less than 66 2/3% of the Percentage
Interests of each Class of Certificates affected thereby for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Pooling and Servicing Agreement or of modifying in any manner
the rights of the Holders of Certificates of such Class; provided, however, that
no such amendment shall:
a. reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any
Certificate without the consent of the Holder of such
Certificate; or
b. reduce the aforesaid percentage of Certificates of any
Class the Holders of which are required to consent to any such
amendment, in any such case without the consent of the Holders
of all Certificates of such Class then outstanding; or
c. adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all
Certificates of such Class then outstanding; or
d. amend Section 11.01 of the Pooling and Servicing Agreement;
or
e. amend the definition of Servicing Standard.
Notwithstanding the foregoing, the Trustee will not be
required to consent to any amendment to the Pooling and Servicing Agreement
without having first received an Opinion of Counsel (in accordance with Section
11.01(g) of the Pooling and Servicing Agreement) to the effect that such
amendment or the exercise of any power granted to the Servicer, the Special
Servicer, the Depositor, the Trustee, the Fiscal Agent or any other specified
person in accordance with such amendment is permitted pursuant to the terms of
the Pooling and Servicing Agreement and will not result in the imposition of a
tax on the REMIC constituted by the Trust or cause the
A-13-8
<PAGE>
Trust (or either the Upper-Tier REMIC or Lower-Tier REMIC) to fail to qualify as
a REMIC.
The Servicer may, at its option, elect to purchase all of the
Mortgage Loans and each REO Property remaining in the Trust Fund as contemplated
by clause (ii) of the succeeding paragraph by giving written notice to the
Trustee and the other parties hereto no later than 60 days prior to the
anticipated date of purchase; provided, however, that the Servicer may so elect
to purchase all of the Mortgage Loans and each REO Property remaining in the
Trust Fund only on or after the first Distribution Date on which the aggregate
Stated Principal Balances of the Mortgage Loans and any REO Loans remaining in
the Trust Fund is less than 1% of the aggregate Cut-off Date Principal Balance
of the Mortgage Loans set forth in the Preliminary Statement. In the event that
the Servicer does not exercise such purchase option within 10 Business Days of
such Distribution Date, then the Special Servicer may purchase all of the
Mortgage Loans and REO Properties. If the Mortgage Loans and REO Properties are
not purchased by the Servicer or the Special Servicer pursuant to their
respective options, then the Controlling Class Certificateholder holding the
largest Certificate Balance of the Controlling Class, and the Holder of the
majority interest of the Class LR Certificates, in that order, may purchase all
of the Mortgage Loans and REO Properties then included in the Trust Fund.
The obligations created by the Pooling and Servicing Agreement
will terminate upon payment (or provision for payment) to all Certificateholders
of all amounts held by or on behalf of the Trustee and required to be paid
following the earlier of (i) the final payment (or advance in respect thereof)
or other liquidation of the last Mortgage Loan or REO Property subject thereto
or (ii) the purchase of all of the assets of the Trust Fund by the Servicer, the
Special Servicer, the holders of the Controlling Class or the holders of the
Class LR Certificates. Written notice of termination of the Pooling and
Servicing Agreement will be given to each Certificateholder, and the final
distribution will be made only upon surrender and cancellation of the
Certificates at the office of the Certificate Registrar or other location
specified in such notice of termination. In no event, however, will the Trust
created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Trustee has executed this Certificate on behalf
of the Trust Fund as Trustee under the Pooling and Servicing Agreement and makes
no representation or warranty as to any of the statements contained herein or
the validity or sufficiency of the Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
A-13-9
<PAGE>
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed under this official seal.
LASALLE BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee under the Pooling
and Servicing Agreement.
By:
-------------------------------------
AUTHORIZED OFFICER
Dated: , 1999
-------------
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS LR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
LASALLE BANK NATIONAL ASSOCIATION,
Authenticating Agent
By:
-------------------------------------
AUTHORIZED SIGNATORY
A-13-10
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT - Custodian (Cust)
-----
under Uniform Gifts to
TEN ENT - as tenants by the Minors Act
entireties ---------
(State)
JT TEN - as joint tenants with
rights of survivorship
and not as tenants in
common
Additional abbreviations may also be used, although not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
-----------------------------
(Please insert Social Security or other identifying number of Assignee)
(Please print or typewrite name and address of assignee)
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
Dated: NOTICE: The signature to this assignment
must correspond with the name as
written upon the face of this
Certificate in every particular
without alteration or enlargement
or any change whatever.
SIGNATURE GUARANTEED
A-13-11
<PAGE>
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to for the account
--------------------------------
of account number or,
-------------------------- ------------------------------
if mailed by check, to . Statements should be
-----------------------------
mailed to . This information is provided by assignee named
---------------------
above, or , as its agent.
-------------------
A-13-12
<PAGE>
EXHIBIT B
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
Loan
ID Property Name Property Type Originator Address
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
PW - 4817 Hunt Valley Executive Plaza Office PWREI 11350 McCormick Rd.
PW - 4818 The Galleria Mixed PWREI 1407-1447 York Road
ML-133 Castle Hill Health Care Center Nursing Home MLMC 615 23rd Street
ML-129 Forest Village Multifamily WMF 4400 Rena Road
ML-134 Brookville Health Care Center Nursing Home MLMC 155 40th Street
PW - 3825 Beckman Coulter, Inc. CTL PWREI 317 and 1000 Lake
Hazeltine Drive
ML-100 Bay Plaza Expansion Retail MLMC 2100 Bartow Avenue
PW - 4819 Timonium Corporate Center Office PWREI 9515 Deereco Road
PW - 7371 Kelsey Hayes Industrial PWREI 12000 and 12025
Tech Center Drive
ML-144 Renaissance Office Park Office MLMC 2215-2295 & 2301-2389
Renaissance Drive
PW - 6093 Concourse I & II Shopping Center Retail PWREI 820 & 827 Rector Drive
ML-146 20th & Campbell Multifamily Chase 2025 East Campbell Ave.
ML-127 Riverbend Apartments Multifamily MLMC 100 River Bend Drive
ML-148 Heathermoor Multifamily Chase 2645 Hard Road
ML-113 Windsor Station Apartments Multifamily MLMC 3501 N Buckner Blvd.
ML-147 Clinton Place Multifamily Chase 42566 Clinton Place Dr.
PW - 7215 Market Center East Retail PWREI 11130 Lomas Blvd.
PW - 1696 Kmart - Ponce CTL PWREI Road 591 & State Rd. #2
ML-120 Heritage Park Apartments Multifamily WMF 1800 West Badillo Street
ML-121 Delta Education Torstar CTL WMF 80 Northwest Boulevard
PW - 3346 INS Regional Office Industrial ARIES 2411 Boswell Road
ML-130 Amber Crest Apartments Multifamily MLMC 25350 US Highway 19 North
PW - 3879 Regal Cinemas, Inc. CTL PWREI 3301 Plank Road
PW - 7009 The Patriots Apartments Multifamily PWREI 1272 South Union Road
PW - 3000 Peace Arch Factory Retail WARD COOK Interstate 5 & Birch
Bay- Linden Road
PW - 6542 Rockport Apartments Multifamily PWREI 8500 Nairn
ML-141 FLAG-Carriage Place Apartment Multifamily MLMC 505 Wells Fargo
ML-109 Seafield Center Health Care MLMC 7 Seafield Lane
PW - 4035 Hartford Plaza Shopping Center Retail ARIES 1201-1275 Bell Avenue
PW - 2034 330-348 East Fordham Road Retail PWREI 340-348 East Fordham Road
ML-139 FLAG-Wintergreen Place Apartments Multifamily MLMC 320 E. Wintergreen Road
ML-105 Harbor Bay Club Other MLMC 200 Packet Landing Rd
PW - 6543 Heatherwood Apartments Multifamily PWREI 9001 S. Braeswood
ML-125 RCA - Landing @ Westchase Multifamily MLMC 9797 Meadowglen
ML-124 RCA-Eastchase Terrace Apartments Multifamily MLMC 9001 Meadowbrook
ML-102 Equinox Terrace Senior Housing-
Assisted Living MLMC 324 Equinox Terrace Rd
PW - 5651 Best Western Hershey Hospitality ARIES NE Corner of Rt. 422 &
Sipe Ave
ML-112 Summit Apartments Multifamily MLMC 444 East 4th Avenue
PW - 4747 Larpenteur Estates Multifamily PWREI 1260-1280 W.
Larpenteur Avenue
ML-142 FLAG-Citation North Apt Multifamily MLMC 411 Highland Cross Drive
PW - 2365 Bancroft Plaza Industrial WARD COOK Bancroft between 5th and
6th Streets
PW - 4139 Rockford Portfolio Industrial PWREI 2076-2082 East University Drive;
503-519 and 605-653 South Rockford Drive;
620-648 South River Road
PW - 4149 Manor Parkway Industrial PWREI 10, 12A & 12B Manor Pkwy.
PW - 3766 Park Greenwood Apartments Multifamily ARIES SWQ of US 31 & Fry Road
ML-131 Mercer Mall Outparcel Retail MLMC US Route One
PW - 2804 Laidlaw Transit, Inc. CTL PWREI 1200 S. Martin L. King Blvd.
PW - 6545 Cedar Branch Apartments Multifamily PWREI 1217 Blalock
PW - 4151A Emerald Hills Village MHP Mobile Home Park 8555 Bacardi Avenue
PW - 4151B Beaver Lake Estates MHP Mobile Home Park 2423 East Maryland Avenue
PW - 4151 Emerald Hills / Beaver Lake
Estates MHP PWREI
PW - 1890 70 Jackson Drive Industrial PWREI 70 Jackson Drive
PW - 2005 Evans Corporate Park Industrial PWREI 8350 East Evans Road
PW - 4370 Hampton Inn Columbia Hospitality PWREI 1551 Barbara Drive
PW - 2982A Summit Bank-Collingswood Retail 836-46 Haddon Avenue
PW - 2982B Summit Bank-Madison Retail 16 Waverly Place
PW - 2982C Summit Bank-Springfield Retail 175 Morris Avenue
PW - 2982D Summit Bank-Edison Retail 46 Parsonage Road
PW - 2982E Summit Bank-Plainfield Retail 335-345 East Front Street
PW - 2982F Summit Bank-Westfield Retail 173 Elm Street
PW - 2982 Summit Bank Portfolio PWREI
ML-103a GEN-Devonhouse Allentown Senior Housing-
Assisted Living 1930 Bevin Drive
ML-103b GEN-Devonhouse Catasauqua Senior Housing-
Assisted Living 2 Front Street
ML-103 GEN-Devonhouse Allentown & Catasauqua MLMC
PW - 4923 Howard Johnson Oceanfront Hospitality PWREI 2560 North Atlantic Avenue
PW - 3441 Loft Building Industrial PWREI 516-530 West 25th Street
PW - 4975 Napa Olympia Mobilodge Mobile Home Park PWREI 244 American Canyon Road
PW - 6460 D.C. Farmers' Market Industrial SUBURBAN 1309& 1325 5th Street
ML-140 FLAG-Rock Springs Apartment Multifamily MLMC 9000 Townpark
PW - 3471 Grand Place Commons Industrial PWREI 40020-40028 Grand River
ML-111 Sedgefield Square Apartments Multifamily MLMC 4215 Bernau Avenue
PW - 2550 Days Inn Eastgate Hospitality ARIES 5245 West Irlo Bronson Memorial Hwy
ML-110 Olympia Ramada Inn Hospitality MLMC 621 S. Capitol Way
PW - 3397 Executive Square Office Park Office COLLATERAL 4277-4329 Memorial Drive
MORTGAGE
PW - 3086 Comfort Inn & Suites - Orangeburg Hospitality VALUEXPRESS 3671 St. Matthews Road
PW - 6024 Cleveland Clinic Office PWREI 2950 Cypress Creek Road
PW - 6544 Creekbend Apartments Multifamily PWREI 7600 Creekbend
PW - 4047 Horton Court Office ARIES 901-933 4th Avenue
PW - 2348 Best Western University Inn Hospitality VALUEXPRESS 1310 Highway 54 East
ML-106 Holiday Inn - Waveland Hospitality MLMC 404 Highway 90
PW - 3189 Collegiate Apartments Multifamily ARIES 485 Taylor Road
PW - 6023 29 East 61st Street Mixed PWREI 29 East 61st Street
PW - 4479 Airport Parkway Quality Inn Hospitality ARIES 2400 Wilkinson Boulevard
PW - 4319 Best Western La Sammana Hospitality VALUEXPRESS 817-A Ward Blvd. South
PW - 6025 Pill Box Plaza Retail PWREI 1700 NW 122nd Terrace
PW - 2358 Post Haste Plaza Retail PWREI 4401-4575 Sheridan Street
PW - 2064 Liberty Square Shopping Center Retail PWREI 6214 US Highway 98N
PW - 6329 Spring Creek Plaza Retail PWREI SWC Pershing Rd. and Monroe St.
PW - 4709 Hampton Inn- Clarksville Hospitality PWREI 190 Holiday Road
PW - 4625 Fountain Court Office PWREI 8250-8300 College Parkway
PW - 3886 Mako Marine Industrial PWREI 4355 NW 128th Street
PW - 3268 Tandy - East Hanover CTL PWREI 301 Route 10
PW - 4355 Best Western Regent Inn Hospitality VALUEXPRESS 123 Storrs Road
PW - 6265 Executive Resort Apartments Multifamily ARIES 1200 Holden Avenue
ML-143 FLAG-Greyfield Apartments Multifamily MLMC 10111 Bissonnet
PW - 3265A Comfort Inn Hospitality N.C. Highway 24/27
PW - 3265B Rodeway Inn Hospitality 200 Henson Street
PW - 3265 Comfort Inn/Rodeway Inn PWREI
PW - 1481 Golden State Warehouse Industrial PWREI 41 Cook Drive
PW - 4345 Richmond Oaks Apartments Multifamily SUBURBAN 1768 Richmond Circle
ML-122 Plaza Village Multifamily WMF 498 Plaza Boulevard
PW - 3146 Econolodge - Pooler Hospitality VALUEXPRESS 500 East Highway 80
PW - 3821 Econo Lodge West Hospitality SUBURBAN 2355 South Beulah Boulevard
PW - 3322 216 East 49th Street Office PWREI 216 East 49th Street
PW - 4629 South Wabash Office ARIES 1130 South Wabash Avenue
PW - 2969 163 First Avenue Multifamily PWREI 163 First Avenue
PW - 3615 Cambridge Court Apartments Multifamily PWREI 3700 Buford Highway
PW - 7098 Washington Grandview Office PWREI 12211 W. Washington Blvd.
PW - 4467 Hallmark Motor Inn Hospitality SPARKS 4500 Central Texas Expressway
PW - 2346 Mountainside Crossing Retail PWREI 4221 E. Chandler Boulevard
PW - 4048 Hard Rock Cafe Retail ARIES 801-825 Fourth Avenue
PW - 3185 Eckerd - Palm Beach CTL PWREI 7030 Jog Road
PW - 3736 University Commons Apartments Multifamily PWREI 250 University Avenue
PW - 2233 Century Resources Industrial PWREI 1450 Concourse Drive
PW - 3714 Super 8 Phoenix Hospitality SPARKS 4021 North 27th Avenue
PW - 5668 9000 Professional Centre Office ARIES 9000 Southwest 87th Court
PW - 3035 Ramada Inn South Hospitality VALUEXPRESS 5624 Cagle Road
PW - 5994A Crestmont Estates Multifamily 3555-3575 Babbs Road
PW - 5994B Independence Townhomes Multifamily 1929-1939 Independence Boulevard
PW - 5994C Residences at Independence Multifamily 1899-1907 Independence Boulevard
PW - 5994 Morgan Mitchell Properties WEXFORD
PW - 1623 Washington Place Apartments Multifamily PWREI 21-25 Howe St/7-11 Washington St.
PW - 3329 Building 210 Industrial PWREI 210 Aspen Airport Business Center
PW - 6314 Gardens Of Sunrise Multifamily WEXFORD 3550 NW 91 Lane
PW - 4008 Days Inn South Hospitality VALUEXPRESS 4220 South I-35
PW - 4112 Heritage Apartments Multifamily PWREI 27662 Nicole Drive
PW - 4762 Comfort Inn Alexandria Hospitality ARIES 7212 Richmond Highway
PW - 4674 1417-39 Sherwin Avenue Multifamily PWREI 1417-39 Sherwin Avenue
PW - 3463 Superpetz Shopping Center Retail STANDARD 1610 Sam Rittenburg Boulevard
PW - 6021 Mercede Americana Plaza Retail PWREI 3842 North University Drive
PW - 4896 School House Terrace Multifamily VALUEXPRESS 437 E. Belvidere Street
PW - 3666 Comfort Inn- Byron Hospitality VALUEXPRESS 607 Chapman Road
PW - 6022 Wearnes Hollingsworth Industrial PWREI 1601 North Powerline Road
PW - 3901 Wheat First Union Building Office PWREI 29-37 South Market Street
PW - 3563A Vezelay Apartments (Westwood) Multifamily 2520-32 Harrison Avenue
PW - 3563B Vezelay Apartments (Harrison) Multifamily 2215-17 Harrison Avenue
PW - 3563C Vezelay Apartments (McHenry) Multifamily 3344-46 McHenry Avenue
PW - 3563D Vezelay Apartments (Amberwoods) Multifamily 7803-7821 Dawn Road
PW - 3563 Vezelay Apartments Multifamily PWREI
PW - 3709 Knight's Inn Hospitality PWREI 2942 Lawrenceville Highway
PW - 4553 Comfort Inn Vidalia Hospitality ARIES 1509 East First Street
PW - 7313 Woodlen Glen Apartments Multifamily WEXFORD 8405 Broadway Blvd.
PW - 1586 Tuckahoe Apartments Multifamily PWREI 88 Lake Avenue
PW - 3466 Adobe Inn Hospitality PWREI Dolores & 8th Street
PW - 1596 Junction Blvd. Retail PWREI 37-21 Junction Blvd.
PW - 4153 Colonial Village MHP Mobile Home Park PWREI 2075 Rustad Lane
PW - 5025 Comfort Inn Clinton Hospitality VALUEXPRESS 103 Clinton Center Drive
PW - 3286 Blue Coral Building Industrial PWREI 1215 Valley Belt Road
PW - 1777 Villager Lodge-Charlotte Hospitality PWREI 2401 Wilkinson Blvd.
PW - 6112 Hollywood 95 Office PWREI 2700-2750 North 29th Avenue
PW - 6414 Harbour Oaks Apartments Multifamily PWREI 1565 Crider Road
PW - 3686 Super 8-Baton Rouge Hospitality PWREI 11444 Reulet Ave.
ML-108a Park Ridge MHP Mobile Home Park 1751 N. Grand Ave.
ML-108b Northbrook MHP Mobile Home Park 3430 N.Peoria Rd.
ML-108 Park Ridge & Northbrook MHP
- multiple prop loan MLMC
PW - 2526 New Exchange Office PWREI 1307 West 6th Street
PW - 3076 Travelodge South Hospitality SPARKS 1274 Murfreesboro Pike
PW - 5083 Route 34 Industrial Industrial PWREI 1709 Route 34
PW - 4678 3501 McKinney Retail PWREI 3501 McKinney
PW - 3426 Comfort Inn Abilene Hospitality SPARKS 1758 East Interstate 20
PW - 3893 Super 8 Fortuna Hospitality PWREI 1805 Alamar Way
PW - 2443 Park 95 Offices Office PWREI 13540-13632 West 95th Street
PW - 4991 Mayfair Apartments Multifamily SUBURBAN 1010 Mayfair Avenue
PW - 3545A 289-291 Devonshire Street Office 289-291 Devonshire Street
PW - 3545B Shell Pointe Apartments Multifamily 56 Longwood Avenue
PW - 3545 Devonshire/Longwood PWREI
PW - 3616 Exeter House Apartments Multifamily PWREI 315 Charger Street
PW - 3968 Langtree Townhomes Multifamily PWREI 505-659 Baylor Drive
PW - 2509 TDC Filter Industrial PWREI 1331 South 55th Court
PW - 3807 Burnett Highland Building Office PWREI 1991 Ford Parkway
PW - 6377 May Avenue Self-Storage Self Storage PWREI 2828 N.W. 62nd St.
PW - 3970 Millertown Center Retail ARIES Loves Creek Road & Millertown Pike
PW - 3093 77 Pennington Avenue Multifamily PWREI 77 Pennington Avenue
PW - 3031 Corporate Square East Office VALUEXPRESS 2511 East 46 Street
PW - 3687 Super 8 Hammond Hospitality PWREI 200 Westin Oak Drive
PW - 2799 The Shops of Greenbriar Retail PWREI 2925 Headland Drive
PW - 7134A Greentree Apartments Multifamily 1755 NE 164 Street
PW - 7134B Keystone Apartments Multifamily 1801 Northeast 124th Street
PW - 7134 GreenTree & Keystone Apartments PWREI
PW - 7133 Villa Joyosa Multifamily PWREI 13150 Memorial Highway
PW - 3570 Super 8 Liverpool Hospitality VALUEXPRESS 7360 Oswego Road (Route 57)
PW - 3176 Quail Creek Self Storage Self Storage PWREI 3030 West Memorial Road
ML-123 Daly Plaza Retail WMF 1883 Daly Street
PW - 4546 Cresap Knoll & Yonkers Apartments Multifamily PWREI 12914-12918 Cresap Knoll Avenue
PW - 7021 Elegante Apartments Multifamily PWREI 1821-1851 NE 168th Street
PW - 3214 Hanna Place Office Park Office PWREI 8858 Cedar Springs Lane
PW - 4426 150 Spring Street Mixed IPI 150 Spring Street
PW - 4897 Days Inn Ladson Hospitality VALUEXPRESS 119 Gateway Drive
PW - 2903 Rockland & Whitman Other PWREI 346 Union St./458 South Ave.
PW - 2495 Metro Plaza Retail Center Retail PWREI 2601 West Dunlap Avenue
PW - 3618 Barker House Apartments Multifamily PWREI 261-273 Barker Street
PW - 1445 Ethan Allen Building Retail PWREI 164 Highway 35 South
PW - 4309 Hearth House Multifamily IPI 50 Avenue A
ML-145 Fremont Park MHP Mobile Home Park MLMC 3501 Ridgely
PW - 4038 3680 Cascade Road Office PWREI 3680 Cascade Road
PW - 4614 Days Inn Jennings Hospitality VALUEXPRESS 2002 Port Drive
PW - 3619 Carlyle House Apartments Multifamily PWREI 135-145 Ward Street
PW - 4371 Riverside Village Apartments Multifamily ARIES 650 Dixon Boulevard
PW - 5254 Villa Verde I Multifamily PWREI 1300/1308 Pennsylvania Avenue
ML-114 1383 Woodward Office Bldg Office MLMC 1383 Woodward
PW - 3515 Hollywood Video Retail PWREI 23 West 127 Army Trail Road
PW - 1663 122-128 Cambridge Street Retail PWREI 122-128 Cambridge Street
PW - 5947 Tudor House Apartments Multifamily SUBURBAN 1 Campus Road
<PAGE>
<CAPTION>
Loan Zip Mortgage Rate Net Original Cut-Off Date Balloon/Repayment
ID City State Code Rate Type Rate Balance Balance Balance
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
PW - 4817 Hunt Valley MD 21031 6.59% Fixed 0.06482 $33,400,000 $33,176,730 $28,865,223
PW - 4818 Lutherville MD 21093 6.69 Fixed 6.5815 18,600,000 18,478,392 16,118,563
ML-133 Union City NJ 7087 8.375 Fixed 8.2665 17,100,000 17,100,000 12,965,703
ML-129 Suitland MD 20746 6.977 Fixed 6.8685 16,489,000 16,337,265 14,397,315
ML-134 Irvington NJ 7111 8.375 Fixed 8.2665 15,740,000 15,740,000 11,934,512
PW - 3825 Chaska MN 55318 7.26 Fixed 7.1515 15,087,308 14,875,024 5,178,669
ML-100 Bronx NY 10475 7.75 Fixed 7.6415 12,830,000 12,774,267 11,004,389
PW - 4819 Timonium MD 21093 6.69 Fixed 6.5815 12,600,000 12,517,620 10,919,027
PW - 7371 Livonia MI 48150 7.8 Fixed 7.6915 11,480,000 11,474,466 10,252,514
ML-144 Las Vegas NV 89119 7.75 Fixed 7.6415 11,000,000 10,993,724 9,640,741
PW - 6093 San Antonio TX 78216 7.8 Fixed 7.6915 10,962,000 10,956,716 9,776,744
ML-146 Phoenix AZ 85016 7.47 Fixed 7.4015 10,700,000 10,700,000 9,790,462
ML-127 West Columbia SC 29169 7.025 Fixed 6.9165 9,600,000 9,960,221 8,700,203
ML-148 Columbus OH 43235 7.59 Fixed 7.5215 9,608,000 9,608,000 8,183,003
ML-113 Dallas TX 75228 7.29 Fixed 7.1815 8,600,000 9,577,018 8,422,965
ML-147 Clinton Township MI 48038 7.61 Fixed 7.5415 9,500,000 9,500,000 8,096,110
PW - 7215 Albuquerque NM 87112 7.74 Fixed 7.6315 9,175,000 9,170,484 8,171,044
PW - 1696 Ponce PR 731 7.24 Fixed 7.1315 8,820,982 8,664,604 69,035
ML-120 West Covina CA 91790 7.15 Fixed 7.0415 8,600,000 8,549,334 7,544,032
ML-121 Nashua NH 3063 6.716 Fixed 6.6075 8,461,733 8,426,129 577,964
PW - 3346 Chula Vista CA 91914 7.15 Fixed 7.0415 8,500,000 8,342,334 5,849,039
ML-130 Clearwater FL 34623 7.13 Fixed 7.0215 7,700,000 8,244,785 7,196,672
PW - 3879 Fredericksburg VA 22407 7.45 Fixed 7.3415 7,911,959 7,911,959 2,461,730
PW - 7009 Gastonia NC 28054 7.77 Fixed 7.6615 7,700,000 7,690,800 6,860,020
PW - 3000 Blaine WA 98240 7.03 Fixed 6.9215 7,725,000 7,671,620 6,753,275
PW - 6542 Houston TX 77074 7.51 Fixed 7.4015 7,595,000 7,585,297 6,723,400
ML-141 Houston TX 77090 7.37 Fixed 7.2615 5,995,000 7,492,394 6,572,575
ML-109 Westhampton Beach NY 11978 8.5 Fixed 8.3915 7,500,000 7,438,152 5,296,379
PW - 4035 Hartford WI 53027 7.1 Fixed 6.9915 7,000,000 6,952,383 6,130,629
PW - 2034 Bronx NY 10458 7.25 Fixed 7.1415 6,500,000 6,466,506 5,041,176
ML-139 DeSoto TX 75134 7.22 Fixed 7.1115 5,500,000 6,460,384 5,649,823
ML-105 Alameda CA 94502 7.42 Fixed 7.3115 6,390,000 6,336,877 5,112,960
PW - 6543 Houston TX 77074 7.62 Fixed 7.5115 6,321,000 6,313,149 5,610,863
ML-125 Houston TX 77042 7.43 Fixed 7.3215 5,840,000 6,276,740 5,837,663
ML-124 Ft. Worth TX 76120 7.43 Fixed 7.3215 5,840,000 6,206,788 5,772,605
ML-102 Manchester Center VT 5255 6.75 Fixed 6.6415 6,000,000 5,962,720 5,140,133
PW - 5651 Hershey PA 17033 8.05 Fixed 7.9415 5,950,000 5,908,372 4,923,155
ML-112 Escondido CA 92025 7.28 Fixed 7.1715 5,000,000 5,847,324 5,141,692
PW - 4747 St. Paul MN 55108 7.52 Fixed 7.4115 5,500,000 5,431,644 3,833,547
ML-142 Houston TX 77073 7.37 Fixed 7.2615 3,690,000 5,303,071 4,652,030
PW - 2365 Berkeley CA 94710 6.59 Fixed 6.4815 5,100,000 5,065,908 4,407,564
PW - 4139 Tempe AZ 85281 7.92 Fixed 7.8115 5,000,000 4,994,257 4,470,649
PW - 4149 Salem NH 3079 7.26 Fixed 7.1515 5,000,000 4,961,082 4,557,745
PW - 3766 Greenwood IN 46142 7.1 Fixed 6.9915 5,000,000 4,955,277 4,379,795
ML-131 Lawrence NJ 8648 8.375 Fixed 8.2665 4,900,000 4,894,164 4,348,107
PW - 2804 Las Vegas NV 89102 6.61 Fixed 6.5015 4,900,000 4,742,905 1,546,889
PW - 6545 Houston TX 77055 7.62 Fixed 7.5115 4,645,000 4,639,231 4,123,155
PW - 4151A Inver Grove Heights MN 55075 2,775,000 2,692,505 67,817
PW - 4151B Maplewood MN 55119 1,970,000 1,911,436 48,144
PW - 4151 6.51 Fixed 6.51 4,745,000 4,603,940 115,961
PW - 1890 Cranford NJ 7016 7.01 Fixed 6.9015 4,400,000 4,366,567 3,845,065
PW - 2005 Scottsdale AZ 85260 7.11 Fixed 7.0015 4,350,000 4,317,700 3,811,297
PW - 4370 Columbia SC 29223 7.85 Fixed 7.7415 4,350,000 4,298,205 213,590
PW - 2982A Collingswood NJ 8108 432,000 420,773 14,643
PW - 2982B Madison NJ 7940 289,000 281,489 9,796
PW - 2982C Springfield NJ 7081 420,000 409,085 14,236
PW - 2982D Edison NJ 8837 680,000 662,328 23,049
PW - 2982E Plainfield NJ 7060 129,000 125,647 4,373
PW - 2982F Westfield NJ 7090 2,300,000 2,240,226 77,959
PW - 2982 6.64 Fixed 6.5315 4,250,000 4,139,548 144,055
ML-103a Allentown PA 18103 3,560,000 3,538,124 2,835,500
ML-103b Catasauqua PA 18032 470,000 467,112 374,350
ML-103 7.25 Fixed 7.25 4,030,000 4,005,236 3,209,850
PW - 4923 Daytona Beach FL 32118 6.49 Fixed 6.3815 3,900,000 3,864,307 3,078,542
PW - 3441 New York NY 10001 7.07 Fixed 6.9615 3,900,000 3,849,159 3,108,483
PW - 4975 American Canyon CA 94589 8.12 Fixed 8.0115 3,850,000 3,823,400 3,589,039
PW - 6460 Washington D.C. DC 20002 9.2 Fixed 9.0915 3,825,000 3,819,352 3,266,932
ML-140 Houston TX 77036 7.094 Fixed 6.9855 3,200,000 3,718,448 3,243,271
PW - 3471 Novi MI 48375 7.4 Fixed 7.2915 3,615,000 3,594,905 3,191,412
ML-111 Greensboro NC 27407 7.19 Fixed 7.0815 3,200,000 3,553,408 3,119,006
PW - 2550 Kissimmee FL 34746 9.59 Fixed 9.4815 3,500,000 3,467,048 2,806,358
ML-110 Olympia WA 98501 8.23 Fixed 8.1215 3,470,000 3,376,028 28,256
PW - 3397 Decatur GA 30032 6.95 Fixed 6.8415 3,400,000 3,363,037 2,723,146
PW - 3086 Orangeburg SC 29118 7.81 Fixed 7.7015 3,300,000 3,266,101 2,712,475
PW - 6024 Fort Lauderdale FL 33309 7.95 Fixed 7.8415 3,170,000 3,168,551 2,967,261
PW - 6544 Houston TX 77071 7.62 Fixed 7.5115 3,148,000 3,144,090 2,794,336
PW - 4047 San Diego CA 92101 7.4 Fixed 7.2915 3,100,000 3,068,825 2,517,069
PW - 2348 Chapel Hill NC 27514 6.96 Fixed 6.8515 3,025,000 2,996,108 2,424,326
ML-106 Waveland MS 39576 7.5 Fixed 7.3915 3,000,000 2,967,020 2,054,837
PW - 3189 Montgomery AL 36117 7.15 Fixed 7.0415 2,936,000 2,916,251 2,574,688
PW - 6023 New York NY 10021 7.6 Fixed 7.4915 2,900,000 2,898,503 2,699,839
PW - 4479 Charlotte NC 28208 7.5 Fixed 7.3915 2,900,000 2,874,821 2,362,528
PW - 4319 Wilson NC 27893 7.51 Fixed 7.4015 2,900,000 2,871,394 2,362,390
PW - 6025 Pembroke Pines FL 33026 8.4 Fixed 8.2915 2,850,000 2,848,903 2,685,507
PW - 2358 Hollywood FL 33021 7.64 Fixed 7.5315 2,850,000 2,825,870 210,440
PW - 2064 Lakeland FL 33809 7.23 Fixed 7.1215 2,850,000 2,814,502 2,303,548
PW - 6329 Decatur IL 62526 8.15 Fixed 8.0415 $2,800,000 $2,798,812 $2,518,121
PW - 4709 Clarksville TN 37040 6.39 Fixed 6.2815 2,850,000 2,783,596 67,840
PW - 4625 Fort Myers FL 33907 6.26 Fixed 6.1515 2,800,000 2,779,883 2,397,652
PW - 3886 Opa Locka FL 33054 7.4 Fixed 7.2915 2,800,000 2,775,250 2,274,272
PW - 3268 East Hanover NJ 7936 6.75 Fixed 6.6415 2,904,245 2,769,932 33,055
PW - 4355 Mansfield Center CT 6250 7.69 Fixed 7.5815 2,800,000 2,756,214 132,403
PW - 6265 Orlando FL 32939 8.05 Fixed 7.9415 2,700,000 2,694,952 2,235,062
ML-143 Houston TX 77036 7.37 Fixed 7.2615 1,980,000 2,684,394 2,354,837
PW - 3265A Albemarle NC 28001 1,900,000 1,837,076 58,109
PW - 3265B Albemarle NC 28001 825,000 797,678 25,232
PW - 3265 7.53 Fixed 7.4215 2,725,000 2,634,753 83,341
PW - 1481 Henrietta NY 14623 7.12 Fixed 7.0115 2,560,000 2,532,971 2,061,112
PW - 4345 Atlanta GA 30315 7.15 Fixed 7.0415 2,500,000 2,476,903 2,015,317
ML-122 Morrisville PA 19067 7.5 Fixed 7.3915 2,485,000 2,476,179 2,198,425
PW - 3146 Pooler GA 31322 7.81 Fixed 7.7015 2,500,000 2,472,003 2,055,760
PW - 3821 Flagstaff AZ 86001 7.66 Fixed 7.5515 2,450,000 2,418,545 1,908,153
PW - 3322 New York NY 10017 7.31 Fixed 7.2015 2,425,000 2,411,233 2,135,982
PW - 4629 Chicago IL 60605 7.6 Fixed 7.4915 2,400,000 2,387,276 2,129,361
PW - 2969 New York NY 10003 7.21 Fixed 7.1015 2,400,000 2,382,589 2,108,217
PW - 3615 Atlanta GA 30329 6.92 Fixed 6.8115 2,400,000 2,354,142 94,199
PW - 7098 Culver City CA 90066 8.18 Fixed 8.0715 2,300,000 2,299,035 2,069,904
PW - 4467 Killeen TX 76541 7.63 Fixed 7.5215 2,315,000 2,297,554 1,892,437
PW - 2346 Phoenix AZ 85044 7.41 Fixed 7.3015 2,300,000 2,284,081 2,030,662
PW - 4048 San Diego CA 92101 7.2 Fixed 7.0915 2,300,000 2,261,678 95,985
PW - 3185 Palm Beach FL 33406 7.05 Fixed 6.9415 2,294,655 2,259,987 614,398
PW - 3736 Troy AL 36081 6.7 Fixed 6.5915 2,280,000 2,257,223 1,812,446
PW - 2233 Rapid City SD 57701 7.18 Fixed 7.0715 2,275,000 2,228,908 1,567,817
PW - 3714 Phoenix AZ 85017 7.28 Fixed 7.1715 2,225,000 2,204,909 1,800,726
PW - 5668 Kendall FL 33176 8.3 Fixed 8.1915 2,175,000 2,171,862 1,963,823
PW - 3035 Jacksonville FL 32216 7.9 Fixed 7.7915 2,200,000 2,155,435 111,279
PW - 5994A Zanesville OH 43701 412,568 412,110 370,027
PW - 5994B Lancaster OH 43130 737,862 737,043 661,779
PW - 5994C Lancaster OH 43130 999,570 998,461 896,502
PW - 5994 8.05 Fixed 7.9415 2,150,000 2,147,615 1,928,308
PW - 1623 Methuen MA 1844 7.07 Fixed 6.9615 2,150,000 2,124,779 1,728,656
PW - 3329 Aspen CO 81611 7.36 Fixed 7.2515 2,125,000 2,099,147 1,724,321
PW - 6314 Sunrise FL 33351 7.61 Fixed 7.5015 2,100,000 2,097,385 1,863,614
PW - 4008 Austin TX 78745 7.76 Fixed 7.6515 2,100,000 2,076,262 1,724,331
PW - 4112 Harrison Township MI 48045 6.66 Fixed 6.5515 2,050,000 2,036,507 1,775,060
PW - 4762 Alexandria VA 22306 7.5 Fixed 7.3915 2,050,000 2,032,201 1,670,062
PW - 4674 Chicago IL 60626 6.7 Fixed 6.5915 2,000,000 1,985,134 1,733,149
PW - 3463 Charleston SC 29407 6.93 Fixed 6.8215 2,000,000 1,978,183 1,600,858
PW - 6021 Sunrise FL 33321 8.81 Fixed 8.7015 1,900,000 1,896,954 1,606,173
PW - 4896 Nazareth PA 18064 7.4 Fixed 7.2915 1,900,000 1,885,096 1,542,658
PW - 3666 Byron GA 31008 7.78 Fixed 7.6715 1,900,000 1,864,455 94,110
PW - 6022 Pompano Beach FL 33069 7.65 Fixed 7.5415 1,860,000 1,859,056 1,732,989
PW - 3901 Frederick MD 21701 7.36 Fixed 7.2515 1,810,000 1,797,323 1,596,032
PW - 3563A Cincinnati OH 45211 311,000 303,095 8,269
PW - 3563B Cincinnati OH 45211 403,000 392,757 10,715
PW - 3563C Cincinnati OH 45225 182,000 177,374 4,839
PW - 3563D Cincinnati OH 45237 929,000 905,387 24,700
PW - 3563 6.89 Fixed 6.7815 1,825,000 1,778,612 48,523
PW - 3709 Tucker GA 30084 7.84 Fixed 7.7315 1,800,000 1,769,508 1,269,041
PW - 4553 Vidalia GA 30474 7.48 Fixed 7.3715 1,770,000 1,748,931 1,441,425
PW - 7313 Houston TX 77065 8.2 Fixed 8.0915 1,725,000 1,724,282 1,553,151
PW - 1586 Tuckahoe NY 10707 7.09 Fixed 6.9815 1,700,000 1,686,221 1,489,208
PW - 3466 Carmel CA 93921 7.66 Fixed 7.5515 1,700,000 1,683,670 1,390,973
PW - 1596 Queens NY 11368 7.01 Fixed 6.9015 1,700,000 1,664,785 1,164,405
PW - 4153 Mounds View MN 55112 6.51 Fixed 6.4015 1,650,000 1,600,949 40,325
PW - 5025 Clinton MS 39056 7.75 Fixed 7.6415 1,600,000 1,580,699 1,124,183
PW - 3286 Brooklyn Heights OH 44131 7.2 Fixed 7.0915 1,600,000 1,579,963 1,292,041
PW - 1777 Charlotte NC 28208 7.54 Fixed 7.4315 1,600,000 1,551,833 48,441
PW - 6112 Hollywood FL 33020 8.05 Fixed 7.9415 1,550,000 1,549,317 1,453,059
PW - 6414 Marietta GA 30060 7.65 Fixed 7.5415 1,550,000 1,549,213 1,377,356
PW - 3686 Baton Rouge LA 70816 8.35 Fixed 8.2415 1,552,000 1,534,699 1,112,966
ML-108a Springfield IL 62704 1,029,180 1,020,060 814,099
ML-108b Springfield IL 62702 510,819 506,293 404,067
ML-108 7 Fixed 6.8915 1,540,000 1,526,353 1,218,167
PW - 2526 Corona CA 92720 7.42 Fixed 7.3115 1,525,000 1,509,717 1,238,974
PW - 3076 Nashville TN 37217 7.71 Fixed 7.6015 1,520,000 1,502,658 1,246,266
PW - 5083 Wall Township NJ 7719 7.52 Fixed 7.4115 1,500,000 1,493,109 1,221,953
PW - 4678 Dallas TX 75204 7.3 Fixed 7.1915 1,500,000 1,486,695 717,852
PW - 3426 Abilene TX 79601 7.7 Fixed 7.5915 1,500,000 1,484,278 1,229,006
PW - 3893 Fortuna CA 95540 7.28 Fixed 7.1715 1,500,000 1,478,185 64,478
PW - 2443 Lenexa KS 66215 7.05 Fixed 6.9415 1,470,000 1,447,974 1,008,063
PW - 4991 Madison WI 53714 8.25 Fixed 8.1415 1,440,000 1,435,065 1,297,492
PW - 3545A Boston MA 2110 1,050,000 1,035,276 845,293
PW - 3545B Wareham MA 2558 400,000 394,391 322,016
PW - 3545 MA 7.11 Fixed 7.0015 1,450,000 1,429,667 1,167,309
PW - 3616 Revere MA 2151 7.05 Fixed 6.9415 1,450,000 1,425,373 608,624
PW - 3968 Longview TX 75601 7.53 Fixed 7.4215 1,400,000 1,390,583 1,335,267
PW - 2509 Cicero IL 60804 6.76 Fixed 6.6515 1,400,000 1,381,045 1,115,225
PW - 3807 St. Paul MN 55116 7.04 Fixed 6.9315 1,400,000 1,376,191 56,064
PW - 6377 Oklahoma City OK 73112 8.36 Fixed 8.2515 1,370,000 1,367,592 1,144,009
PW - 3970 Knoxville TN 37919 7.4 Fixed 7.2915 1,350,000 1,340,634 1,191,611
PW - 3093 Passaic NJ 7055 7.39 Fixed 7.2815 1,350,000 1,336,400 91,508
PW - 3031 Indianapolis IN 46205 7.45 Fixed 7.3415 1,350,000 1,333,842 1,098,408
PW - 3687 Hammond LA 70816 7.96 Fixed 7.8515 1,300,000 1,284,742 920,024
PW - 2799 Atlanta GA 30344 7.58 Fixed 7.4715 1,300,000 1,283,238 1,061,437
PW - 7134A North Miami FL 33162 $ 822,000 $ 820,386 $ 675,583
PW - 7134B North Miami FL 33162 455,000 454,107 373,954
PW - 7134 7.8 Fixed 7.6915 1,277,000 1,274,493 1,049,536
PW - 7133 North Miami FL 33161 7.8 Fixed 7.6915 1,264,000 1,261,519 1,038,852
PW - 3570 Liverpool NY 13090 7.54 Fixed 7.4315 1,275,000 1,254,668 58,041
PW - 3176 Oklahoma City OK 73134 7.1 Fixed 6.9915 1,250,000 1,241,497 1,094,755
ML-123 Los Angeles CA 90031 7.175 Fixed 7.0665 1,238,000 1,225,052 500,517
PW - 4546 Cumberland MD 21502 8.1 Fixed 7.9915 1,200,000 1,193,977 994,262
PW - 7021 North Miami Beach FL 33162 7.8 Fixed 7.6915 1,195,000 1,192,654 982,144
PW - 3214 Knoxville TN 37923 7.63 Fixed 7.5215 1,200,000 1,191,466 1,065,685
PW - 4426 New York NY 10012 7.35 Fixed 7.2415 1,200,000 1,190,505 972,855
PW - 4897 Ladson SC 29456 8.15 Fixed 8.0415 1,200,000 1,186,264 854,764
PW - 2903 Rockland/Whitman MA 2370 7.52 Fixed 7.4115 1,200,000 1,185,820 978,401
PW - 2495 Phoenix AZ 85021 7.26 Fixed 7.1515 1,200,000 1,166,607 33,995
PW - 3618 Lowell MA 1850 7.1 Fixed 6.9915 1,200,000 1,166,129 32,949
PW - 1445 Eatontown NJ 7724 7.31 Fixed 7.2015 1,150,000 1,127,096 796,211
PW - 4309 New York NY 10009 6.8 Fixed 6.6915 1,100,000 1,091,891 877,156
ML-145 Springfield IL 62702 7 Fixed 6.8915 1,060,000 1,050,607 838,478
PW - 4038 Atlanta GA 30331 7.34 Fixed 7.2315 1,050,000 1,043,235 925,261
PW - 4614 Jennings LA 70546 7.6 Fixed 7.4915 1,012,500 1,000,046 46,677
PW - 3619 Revere MA 2151 7.05 Fixed 6.9415 1,000,000 971,649 27,190
PW - 4371 Cocoa FL 32922 7.45 Fixed 7.3415 950,000 938,630 772,954
PW - 5254 Miami Beach FL 33139 8.35 Fixed 8.2415 900,000 896,991 812,790
ML-114 Bloomfield Twp MI 48302 7.75 Fixed 7.6415 860,000 855,095 694,133
PW - 3515 Glendale Heights IL 60139 7.41 Fixed 7.3015 850,000 839,752 690,764
PW - 1663 Boston MA 2114 6.97 Fixed 6.8615 800,000 790,450 641,242
PW - 5947 Peekskill NY 10566 8.6 Fixed 8.4915 725,000 724,743 658,740
704,764,603
<PAGE>
<CAPTION>
Orig Rem Amort Monthly
Loan Term Term Maturity ARD Term First Payment Debt Appraised
ID (Mos.) (Mos.) Date Date (Mos.) Date Service Value
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
PW - 4817 120 112 10/1/28 10/1/08 360 11/1/98 213,091.49 $46,750,000
PW - 4818 120 112 10/1/28 10/1/08 360 11/1/98 119,898.35 25,000,000
ML-133 120 120 6/1/09 264 7/1/99 143,356.04 23,500,000
ML-129 120 108 6/1/28 6/1/08 360 7/1/98 109,447.15 20,600,000
ML-134 120 120 6/1/09 264 7/1/99 131,954.62 26,400,000
PW - 3825 239 228 6/5/18 294 8/5/98 110,000.00 15,400,000
ML-100 132 126 12/1/28 12/1/09 360 1/1/99 92,919.22 18,000,000
PW - 4819 120 112 10/1/28 10/1/08 360 11/1/98 81,221.46 16,750,000
PW - 7371 119 118 5/1/29 4/1/09 360 6/1/99 82,641.13 15,980,000
ML-144 120 119 5/1/09 360 6/1/99 79,686.17 16,200,000
PW - 6093 120 119 5/1/09 360 6/1/99 78,912.20 14,000,000
ML-146 96 96 6/1/07 360 7/1/99 74,596.27 13,450,000
ML-127 120 105 3/1/08 360 4/1/98 67,976.03 12,600,000
ML-148 144 144 6/1/11 360 7/1/99 67,773.64 12,700,000
ML-113 120 103 1/1/08 360 2/1/98 67,203.06 12,150,000
ML-147 144 144 6/1/11 360 7/1/99 67,142.40 11,900,000
PW - 7215 120 119 5/1/09 360 6/1/99 65,667.43 12,300,000
PW - 1696 238 229 7/1/18 NAP 10/1/98 70,180.11 9,500,000
ML-120 120 112 10/1/08 360 11/1/98 58,084.98 11,400,000
ML-121 246 235 12/31/18 240 2/1/99 54,399.00 9,200,000
PW - 3346 120 110 8/1/08 240 9/1/98 66,667.90 10,700,000
ML-130 120 108 6/1/08 360 7/1/98 56,712.70 10,400,000
PW - 3879 299 288 6/1/23 NAP 8/1/98 50,757.41 8,200,000
PW - 7009 120 118 4/1/09 360 5/1/99 55,270.20 9,694,000
PW - 3000 120 111 9/1/08 360 10/1/98 51,550.35 10,300,000
PW - 6542 120 118 4/1/09 360 5/1/99 53,157.36 9,900,000
ML-141 120 108 6/1/08 360 7/1/98 52,767.50 9,450,000
ML-109 120 115 1/1/09 240 2/1/99 65,667.24 10,400,000
PW - 4035 120 111 9/1/08 360 10/1/98 47,042.24 8,900,000
PW - 2034 180 173 11/1/13 360 12/1/98 44,341.46 10,800,000
ML-139 120 108 6/1/08 360 7/1/98 44,834.66 9,300,000
ML-105 120 113 11/1/08 300 12/1/98 47,334.33 9,600,000
PW - 6543 120 118 4/1/09 360 5/1/99 44,717.90 8,100,000
ML-125 84 70 4/1/05 360 5/1/98 44,536.83 8,600,000
ML-124 84 70 4/1/05 360 5/1/98 44,040.42 8,200,000
ML-102 120 113 11/1/08 360 12/1/98 39,305.90 9,360,000
PW - 5651 120 113 11/1/08 300 12/1/98 46,120.32 8,000,000
ML-112 120 103 1/1/08 360 2/1/98 40,991.44 8,330,000
PW - 4747 120 113 11/1/08 240 12/1/98 44,374.91 8,100,000
ML-142 120 108 6/1/08 360 7/1/98 37,348.51 7,250,000
PW - 2365 120 112 10/1/08 360 11/1/98 32,537.92 6,800,000
PW - 4139 120 118 4/1/09 360 5/1/99 36,409.77 6,600,000
PW - 4149 96 85 7/1/06 360 8/1/98 34,142.73 7,000,000
PW - 3766 120 108 6/1/08 360 7/1/98 33,601.60 6,250,000
ML-131 120 118 4/1/09 360 5/1/99 37,673.13 7,450,000
PW - 2804 116 107 5/1/08 NAP 10/1/98 43,644.95 5,210,000
PW - 6545 120 118 4/1/09 360 5/1/99 32,861.04 5,860,000
PW - 4151A 24,188.49 8,400,000
PW - 4151B 17,171.65 5,200,000
PW - 4151 180 171 9/1/13 180 10/1/98 41,360.14 13,600,000
PW - 1890 120 110 8/1/08 360 9/1/98 29,302.87 6,900,000
PW - 2005 120 110 8/1/08 360 9/1/98 29,262.73 5,650,000
PW - 4370 240 233 11/1/18 240 12/1/98 35,980.11 6,469,000
PW - 2982A 3,796.51 475,000
PW - 2982B 2,539.80 375,000
PW - 2982C 3,691.05 625,000
PW - 2982D 5,975.99 1,050,000
PW - 2982E 1,133.68 275,000
PW - 2982F 20,212.91 3,250,000
PW - 2982 179 171 9/1/13 180 11/1/98 37,349.94 6,050,000
ML-103a 25,971.82 4,450,000
ML-103b 3,428.86 1,080,000
ML-103 120 115 1/1/09 300 2/1/99 29,400.68 5,530,000
PW - 4923 120 113 11/1/08 300 12/1/98 26,308.71 5,225,000
PW - 3441 120 112 10/1/08 300 11/1/98 27,738.79 6,200,000
PW - 4975 60 53 11/1/03 300 12/1/98 30,021.62 4,980,000
PW - 6460 120 118 4/1/09 300 5/1/99 32,624.74 5,500,000
ML-140 120 108 6/1/08 360 7/1/98 25,486.72 5,200,000
PW - 3471 120 112 10/1/08 360 11/1/98 25,029.53 4,540,000
ML-111 120 103 1/1/08 360 2/1/98 24,692.49 4,810,000
PW - 2550 102 95 5/1/07 240 12/1/98 32,830.57 7,900,000
ML-110 264 246 12/1/19 264 1/1/98 28,448.64 6,100,000
PW - 3397 120 111 9/1/08 300 10/1/98 23,922.15 5,100,000
PW - 3086 120 110 8/1/08 300 9/1/98 25,055.98 4,550,000
PW - 6024 84 83 5/1/06 360 6/1/99 23,149.94 4,000,000
PW - 6544 120 118 4/1/09 360 5/1/99 22,270.52 4,000,000
PW - 4047 120 111 9/1/08 300 10/1/98 22,707.46 5,100,000
PW - 2348 120 112 10/1/08 300 11/1/98 21,302.94 5,200,000
ML-106 120 114 12/1/08 240 1/1/99 24,368.71 4,570,000
PW - 3189 120 111 9/1/08 360 10/1/98 19,829.94 3,670,000
PW - 6023 84 83 5/1/06 360 6/1/99 20,476.17 5,500,000
PW - 4479 120 112 10/1/08 300 11/1/98 21,430.74 3,920,000
PW - 4319 120 111 9/1/08 300 10/1/98 21,449.61 3,900,000
PW - 6025 84 83 5/1/06 360 6/1/99 21,712.37 4,880,000
PW - 2358 300 292 10/1/23 300 11/1/98 21,321.46 3,950,000
PW - 2064 120 109 7/1/08 300 8/1/98 20,563.29 4,000,000
PW - 6329 120 119 5/1/09 360 6/1/99 20,838.95 $3,740,000
PW - 4709 180 173 11/1/13 180 12/1/98 24,654.54 5,000,000
PW - 4625 120 112 10/1/08 360 11/1/98 17,258.30 4,650,000
PW - 3886 120 112 10/1/08 300 11/1/98 20,509.97 5,150,000
PW - 3268 135 125 11/1/09 NAP 9/1/98 29,646.21 4,700,000
PW - 4355 240 231 9/1/18 240 10/1/98 22,883.02 3,800,000
PW - 6265 120 118 4/1/09 300 5/1/99 20,928.55 3,400,000
ML-143 120 108 6/1/08 360 7/1/98 18,905.68 3,360,000
PW - 3265A 17,645.64 2,945,000
PW - 3265B 7,661.92 1,445,000
PW - 3265 180 169 7/1/13 180 8/1/98 25,307.56 4,390,000
PW - 1481 120 111 9/1/08 300 10/1/98 18,289.99 3,300,000
PW - 4345 120 112 10/1/08 300 11/1/98 17,909.42 3,400,000
ML-122 120 115 1/1/09 360 2/1/99 17,375.48 3,450,000
PW - 3146 120 109 7/1/08 300 8/1/98 18,981.81 3,200,000
PW - 3821 120 110 8/1/08 276 9/1/98 18,903.86 4,000,000
PW - 3322 120 112 10/1/08 360 11/1/98 16,641.58 3,800,000
PW - 4629 120 112 10/1/08 360 11/1/98 16,945.79 3,200,000
PW - 2969 120 110 8/1/08 360 9/1/98 16,307.17 3,100,000
PW - 3615 240 230 8/1/18 240 9/1/98 18,492.10 4,100,000
PW - 7098 120 119 5/1/09 360 6/1/99 17,166.08 3,800,000
PW - 4467 120 113 11/1/08 300 12/1/98 17,303.88 3,400,000
PW - 2346 120 110 8/1/08 360 9/1/98 15,940.43 3,000,000
PW - 4048 240 231 9/1/18 240 10/1/98 18,109.03 3,250,000
PW - 3185 226 215 5/1/17 NAP 8/1/98 16,745.89 2,640,000
PW - 3736 120 112 10/1/08 300 11/1/98 15,680.87 2,850,000
PW - 2233 120 109 7/1/08 240 8/1/98 17,884.69 3,250,000
PW - 3714 120 112 10/1/08 300 11/1/98 16,125.48 3,000,000
PW - 5668 120 117 3/1/09 360 4/1/99 16,416.56 3,200,000
PW - 3035 240 228 6/1/18 240 7/1/98 18,265.00 2,950,000
PW - 5994A 3,041.67 520,000
PW - 5994B 5,439.91 930,000
PW - 5994C 7,369.36 1,260,000
PW - 5994 120 118 4/1/09 360 5/1/99 15,850.94 2,710,000
PW - 1623 120 110 8/1/08 300 9/1/98 15,291.90 3,000,000
PW - 3329 120 109 7/1/08 300 8/1/98 15,510.56 2,950,000
PW - 6314 120 118 4/1/09 360 5/1/99 14,842.01 3,000,000
PW - 4008 120 109 7/1/08 300 8/1/98 15,875.69 2,850,000
PW - 4112 120 112 10/1/08 360 11/1/98 13,173.85 2,800,000
PW - 4762 120 112 10/1/08 300 11/1/98 15,149.32 3,000,000
PW - 4674 120 111 9/1/08 360 10/1/98 12,905.56 2,500,000
PW - 3463 120 111 9/1/08 300 10/1/98 14,046.40 4,100,000
PW - 6021 120 118 4/1/09 300 5/1/99 15,698.26 3,500,000
PW - 4896 120 113 11/1/08 300 12/1/98 13,917.48 2,400,000
PW - 3666 240 229 7/1/18 240 8/1/98 15,633.21 2,500,000
PW - 6022 84 83 5/1/06 360 6/1/99 13,196.97 2,800,000
PW - 3901 120 110 8/1/08 360 9/1/98 12,482.72 2,800,000
PW - 3563A 2,776.27 550,000
PW - 3563B 3,597.54 650,000
PW - 3563C 1,624.70 425,000
PW - 3563D 8,293.09 1,350,000
PW - 3563 180 172 10/1/13 180 11/1/98 16,291.59 2,975,000
PW - 3709 120 110 8/1/08 240 9/1/98 14,877.18 2,600,000
PW - 4553 120 109 7/1/08 300 8/1/98 13,057.13 2,380,000
PW - 7313 120 119 5/1/09 360 6/1/99 12,898.76 2,700,000
PW - 1586 120 109 7/1/08 360 8/1/98 11,413.08 2,300,000
PW - 3466 120 111 9/1/08 300 10/1/98 12,740.31 6,000,000
PW - 1596 120 109 7/1/08 240 8/1/98 13,190.29 2,600,000
PW - 4153 180 171 9/1/13 180 10/1/98 14,382.34 3,220,000
PW - 5025 120 113 11/1/08 240 12/1/98 13,135.18 2,150,000
PW - 3286 120 109 7/1/08 300 8/1/98 11,513.42 2,150,000
PW - 1777 180 170 8/1/13 180 9/1/98 14,868.59 2,315,000
PW - 6112 84 83 5/1/06 360 6/1/99 11,427.42 2,850,000
PW - 6414 120 119 5/1/09 360 6/1/99 10,997.47 1,940,000
PW - 3686 120 113 11/1/08 240 12/1/98 13,321.64 2,300,000
ML-108a 7,340.52 845,000
ML-108b 3,643.37 1,635,000
ML-108 120 113 11/1/08 300 12/1/98 10,983.90 2,480,000
PW - 2526 120 111 9/1/08 300 10/1/98 11,190.38 3,220,000
PW - 3076 120 109 7/1/08 300 8/1/98 11,441.11 2,125,000
PW - 5083 120 116 2/1/09 300 3/1/99 11,104.39 2,100,000
PW - 4678 120 117 3/1/09 180 4/1/99 13,735.25 3,480,000
PW - 3426 120 110 8/1/08 300 9/1/98 11,280.74 2,070,000
PW - 3893 240 232 10/1/18 240 11/1/98 11,882.92 1,930,000
PW - 2443 120 112 10/1/08 240 11/1/98 11,441.05 1,950,000
PW - 4991 120 114 12/1/08 360 1/1/99 10,818.24 1,880,000
PW - 3545A 7,495.02 1,260,000
PW - 3545B 2,855.25 600,000
PW - 3545 120 108 6/1/08 300 7/1/98 10,350.27 1,860,000
PW - 3616 180 171 9/1/13 240 10/1/98 11,285.39 3,600,000
PW - 3968 60 50 8/1/03 360 9/1/98 9,817.78 1,880,000
PW - 2509 120 109 7/1/08 300 8/1/98 9,681.60 2,100,000
PW - 3807 240 231 9/1/18 240 10/1/98 10,887.82 1,900,000
PW - 6377 120 118 4/1/09 300 5/1/99 10,902.66 1,850,000
PW - 3970 120 110 8/1/08 360 9/1/98 9,347.13 1,800,000
PW - 3093 300 291 9/1/23 300 10/1/98 9,879.99 1,900,000
PW - 3031 120 109 7/1/08 300 8/1/98 9,932.52 1,900,000
PW - 3687 120 113 11/1/08 240 12/1/98 10,841.38 2,075,000
PW - 2799 120 108 6/1/08 300 7/1/98 9,674.63 2,600,000
PW - 7134A 6,235.81 $1,050,000
PW - 7134B 3,451.70 570,000
PW - 7134 120 118 4/1/09 300 5/1/99 9,687.51 1,620,000
PW - 7133 120 118 4/1/09 300 5/1/99 9,588.89 1,575,000
PW - 3570 240 231 9/1/18 240 10/1/98 10,302.52 1,700,000
PW - 3176 120 111 9/1/08 360 10/1/98 8,400.40 1,675,000
ML-123 240 231 9/1/23 9/1/18 300 10/1/98 8,888.62 1,650,000
PW - 4546 120 115 1/1/09 300 2/1/99 9,341.43 1,600,000
PW - 7021 120 118 4/1/09 300 5/1/99 9,065.44 1,535,000
PW - 3214 120 109 7/1/08 360 8/1/98 8,497.65 1,645,000
PW - 4426 120 113 11/1/08 300 12/1/98 8,751.14 1,750,000
PW - 4897 120 113 11/1/08 240 12/1/98 10,149.59 1,900,000
PW - 2903 120 109 7/1/08 300 8/1/98 8,883.51 1,570,000
PW - 2495 180 171 9/1/13 180 10/1/98 10,961.12 1,600,000
PW - 3618 180 171 9/1/13 180 10/1/98 10,853.14 2,600,000
PW - 1445 120 109 7/1/08 240 8/1/98 9,131.18 1,500,000
PW - 4309 120 114 12/1/08 300 1/1/99 7,634.79 2,700,000
ML-145 120 113 11/1/08 300 12/1/98 7,560.35 1,375,000
PW - 4038 120 111 9/1/08 360 10/1/98 7,227.06 1,400,000
PW - 4614 240 233 11/1/18 240 12/1/98 8,218.65 2,000,000
PW - 3619 180 171 9/1/13 180 10/1/98 9,016.26 5,500,000
PW - 4371 120 109 7/1/08 300 8/1/98 6,989.55 1,300,000
PW - 5254 120 114 12/1/08 360 1/1/99 6,824.77 1,200,000
ML-114 120 115 1/1/09 300 2/1/99 6,558.94 1,250,000
PW - 3515 120 109 7/1/08 300 8/1/98 6,231.75 1,250,000
PW - 1663 120 110 8/1/08 300 9/1/98 5,638.93 1,000,000
PW - 5947 120 119 5/1/09 360 6/1/99 5,626.08 1,000,000
<PAGE>
<CAPTION>
Residiual Value
Policy and / or
Loan Current Underwriting Servicing Fee Excess Interest Accrual IDOT CTL Lease Enhancement
ID LTV DSCR Rate Yield Rate Method Defeased Loan Loan Policy
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
PW - 4817 71.00% 1.65x 0.07% 0.04% Actual/360 Yes Yes No
PW - 4818 73.9 1.45 0.0735 0.035 Actual/360 Yes Yes No
ML-133 72.8 1.6 0.0735 0.035 Actual/360 Yes No
ML-129 79.3 1.21 0.0735 0.035 Actual/360 Yes No
ML-134 59.6 1.73 0.0735 0.035 Actual/360 Yes No
PW - 3825 96.6 1 0.0735 0.035 30/360 Yes Yes Yes
ML-100 71 1.25 0.0735 0.035 Actual/360 Yes No
PW - 4819 74.7 1.32 0.0735 0.035 Actual/360 Yes Yes No
PW - 7371 71.8 1.23 0.0735 0.035 Actual/360 Yes No
ML-144 67.9 1.25 0.0735 0.035 Actual/360 Yes No
PW - 6093 78.3 1.2 0.0735 0.035 Actual/360 Yes No
ML-146 79.6 1.22 0.0685 0 Actual/360 Yes No
ML-127 79 1.31 0.0735 0.035 Actual/360 No No
ML-148 75.7 1.26 0.0685 0 Actual/360 Yes No
ML-113 78.8 1.32 0.0735 0.035 Actual/360 No No
ML-147 79.8 1.22 0.0685 0 Actual/360 Yes No
PW - 7215 74.6 1.22 0.0735 0.035 Actual/360 Yes No
PW - 1696 91.2 1.06 0.0735 0.035 30/360 Yes Yes Yes
ML-120 75 1.2 0.0735 0.035 Actual/360 Yes No
ML-121 91.6 1 0.0735 0.035 30/360 Yes Yes No
PW - 3346 78 1.22 0.0735 0.035 Actual/360 Yes No
ML-130 79.3 1.47 0.0735 0.035 Actual/360 Yes No
PW - 3879 96.5 1.02 0.0735 0.035 Actual/360 Yes Yes Yes
PW - 7009 79.3 1.2 0.0735 0.035 Actual/360 Yes No
PW - 3000 74.5 1.7 0.0735 0.035 Actual/360 Yes No
PW - 6542 76.6 1.27 0.0735 0.035 Actual/360 Yes No
ML-141 79.3 1.25 0.0735 0.035 Actual/360 Yes No
ML-109 71.5 2.27 0.0735 0.035 Actual/360 Yes No
PW - 4035 78.1 1.26 0.0735 0.035 Actual/360 Yes No
PW - 2034 59.9 1.93 0.0735 0.035 Actual/360 Yes No
ML-139 69.5 1.25 0.0735 0.035 Actual/360 Yes No
ML-105 66 1.57 0.0735 0.035 Actual/360 Yes No
PW - 6543 77.9 1.25 0.0735 0.035 Actual/360 Yes No
ML-125 73 1.25 0.0735 0.035 Actual/360 No No
ML-124 75.7 1.25 0.0735 0.035 Actual/360 No No
ML-102 63.7 1.73 0.0735 0.035 Actual/360 Yes No
PW - 5651 73.9 1.47 0.0735 0.035 Actual/360 Yes No
ML-112 70.2 1.25 0.0735 0.035 Actual/360 No No
PW - 4747 67.1 1.39 0.0735 0.035 Actual/360 Yes No
ML-142 73.1 1.25 0.0735 0.035 Actual/360 Yes No
PW - 2365 74.5 1.63 0.0735 0.035 Actual/360 Yes No
PW - 4139 75.7 1.3 0.0735 0.035 Actual/360 Yes No
PW - 4149 70.9 1.2 0.0735 0.035 Actual/360 Yes No
PW - 3766 79.3 1.42 0.0735 0.035 Actual/360 Yes No
ML-131 65.7 1.4 0.0735 0.035 Actual/360 Yes No
PW - 2804 91 1 0.0735 0.035 Actual/360 Yes Yes Yes
PW - 6545 79.2 1.25 0.0735 0.035 Actual/360 Yes No
PW - 4151A 0.0735 0.035 Yes No
PW - 4151B 0.0735 0.035 Yes No
PW - 4151 33.9 2.66 Actual/360
PW - 1890 63.3 1.35 0.0735 0.035 Actual/360 Yes No
PW - 2005 76.4 1.52 0.0735 0.035 Actual/360 Yes No
PW - 4370 66.4 1.43 0.0735 0.035 Actual/360 Yes No
PW - 2982A
PW - 2982B
PW - 2982C
PW - 2982D
PW - 2982E
PW - 2982F
PW - 2982 68.4 1.29 0.0735 0.035 Actual/360 Yes No
ML-103a 0.0735 0.035 Actual/360 Yes No
ML-103b 0.0735 0.035 Actual/360 Yes No
ML-103 72.4 1.4
PW - 4923 74 1.76 0.0735 0.035 Actual/360 Yes No
PW - 3441 62.1 1.44 0.0735 0.035 Actual/360 Yes No
PW - 4975 76.8 1.27 0.0735 0.035 Actual/360 Yes No
PW - 6460 69.4 1.55 0.0735 0.035 Actual/360 Yes No
ML-140 71.5 1.31 0.0735 0.035 Actual/360 No No
PW - 3471 79.2 1.27 0.0735 0.035 Actual/360 Yes No
ML-111 73.9 1.35 0.0735 0.035 Actual/360 No No
PW - 2550 43.9 1.6 0.0735 0.035 Actual/360 Yes No
ML-110 55.3 1.68 0.0735 0.035 30/360 Yes No
PW - 3397 65.9 1.81 0.0735 0.035 Actual/360 Yes No
PW - 3086 71.8 1.85 0.0735 0.035 Actual/360 Yes No
PW - 6024 79.2 1.27 0.0735 0.035 Actual/360 Yes No
PW - 6544 78.6 1.26 0.0735 0.035 Actual/360 Yes No
PW - 4047 60.2 1.2 0.0735 0.035 Actual/360 Yes No
PW - 2348 57.6 2.38 0.0735 0.035 Actual/360 Yes No
ML-106 64.9 1.57 0.0735 0.035 Actual/360 Yes No
PW - 3189 79.5 1.35 0.0735 0.035 Actual/360 Yes No
PW - 6023 52.7 1.55 0.0735 0.035 Actual/360 Yes No
PW - 4479 73.3 1.66 0.0735 0.035 Actual/360 Yes No
PW - 4319 73.6 1.52 0.0735 0.035 Actual/360 Yes No
PW - 6025 58.4 1.31 0.0735 0.035 Actual/360 Yes No
PW - 2358 71.5 1.6 0.0735 0.035 Actual/360 Yes No
PW - 2064 70.4 1.33 0.0735 0.035 Actual/360 Yes No
PW - 6329 74.8 1.22 0.0735 0.035 Actual/360 Yes No
PW - 4709 55.7 1.54 0.0735 0.035 Actual/360 Yes No
PW - 4625 59.8 1.66 0.0735 0.035 Actual/360 Yes No
PW - 3886 53.9 1.53 0.0735 0.035 Actual/360 Yes No
PW - 3268 58.9 1.07 0.0735 0.035 Actual/360 Yes Yes Yes
PW - 4355 72.5 1.68 0.0735 0.035 Actual/360 Yes No
PW - 6265 79.3 1.36 0.0735 0.035 Actual/360 Yes No
ML-143 79.9 1.28 0.0735 0.035 Actual/360 Yes No
PW - 3265A
PW - 3265B
PW - 3265 60 1.59 0.0735 0.035 Actual/360 Yes No
PW - 1481 76.8 1.22 0.0735 0.035 Actual/360 Yes No
PW - 4345 72.9 1.62 0.0735 0.035 Actual/360 Yes No
ML-122 71.8 1.27 0.0735 0.035 Actual/360 Yes No
PW - 3146 77.3 1.78 0.0735 0.035 Actual/360 Yes No
PW - 3821 60.5 1.61 0.0735 0.035 Actual/360 Yes No
PW - 3322 63.5 1.31 0.0735 0.035 Actual/360 Yes No
PW - 4629 74.6 1.38 0.0735 0.035 Actual/360 Yes No
PW - 2969 76.9 1.37 0.0735 0.035 Actual/360 Yes No
PW - 3615 57.4 1.61x 0.0735 0.035 Actual/360 Yes No
PW - 7098 60.5 1.54 0.0735 0.035 Actual/360 Yes No
PW - 4467 67.6 2.67 0.0735 0.035 Actual/360 No No
PW - 2346 76.1 1.39 0.0735 0.035 Actual/360 Yes No
PW - 4048 69.6 1.22 0.0735 0.035 Actual/360 Yes No
PW - 3185 85.6 1.08 0.0735 0.035 Actual/360 Yes Yes Yes
PW - 3736 79.2 1.25 0.0735 0.035 Actual/360 Yes No
PW - 2233 68.6 1.32 0.0735 0.035 Actual/360 No No
PW - 3714 73.5 1.46 0.0735 0.035 Actual/360 Yes No
PW - 5668 67.9 1.35 0.0735 0.035 Actual/360 Yes No
PW - 3035 73.1 1.34 0.0735 0.035 Actual/360 Yes No
PW - 5994A
PW - 5994B
PW - 5994C
PW - 5994 79.2 1.21 0.0735 0.035 Actual/360 Yes No
PW - 1623 70.8 1.58 0.0735 0.035 Actual/360 Yes No
PW - 3329 71.2 1.38 0.0735 0.035 Actual/360 Yes No
PW - 6314 69.9 1.36 0.0735 0.035 Actual/360 Yes No
PW - 4008 72.9 1.65 0.0735 0.035 Actual/360 No No
PW - 4112 72.7 1.33 0.0735 0.035 Actual/360 Yes No
PW - 4762 67.7 1.65 0.0735 0.035 Actual/360 Yes No
PW - 4674 79.4 1.44 0.0735 0.035 Actual/360 Yes No
PW - 3463 48.2 2.05 0.0735 0.035 Actual/360 Yes No
PW - 6021 54.2 1.63 0.0735 0.035 Actual/360 Yes No
PW - 4896 78.5 1.25 0.0735 0.035 Actual/360 Yes No
PW - 3666 74.6 1.4 0.0735 0.035 Actual/360 Yes No
PW - 6022 66.4 1.48 0.0735 0.035 Actual/360 Yes No
PW - 3901 64.2 1.47 0.0735 0.035 Actual/360 No No
PW - 3563A
PW - 3563B
PW - 3563C
PW - 3563D
PW - 3563 59.8 1.25 0.0735 0.035 Actual/360 Yes No
PW - 3709 68.1 1.82 0.0735 0.035 Actual/360 Yes No
PW - 4553 73.5 1.97 0.0735 0.035 Actual/360 Yes No
PW - 7313 63.9 1.37 0.0735 0.035 Actual/360 Yes No
PW - 1586 73.3 1.4 0.0735 0.035 Actual/360 Yes No
PW - 3466 28.1 3.07 0.0735 0.035 Actual/360 Yes No
PW - 1596 64 1.38 0.0735 0.035 Actual/360 Yes No
PW - 4153 49.7 1.88 0.0735 0.035 Actual/360 Yes No
PW - 5025 73.5 1.47 0.0735 0.035 Actual/360 Yes No
PW - 3286 73.5 1.35 0.0735 0.035 Actual/360 Yes No
PW - 1777 67 1.67 0.0735 0.035 Actual/360 Yes No
PW - 6112 54.4 1.63 0.0735 0.035 Actual/360 Yes No
PW - 6414 79.9 1.51 0.0735 0.035 Actual/360 Yes No
PW - 3686 66.7 1.95 0.0735 0.035 Actual/360 Yes No
ML-108a
ML-108b
ML-108 61.5 1.52 0.0735 0.035 Actual/360 Yes No
PW - 2526 46.9 1.49 0.0735 0.035 Actual/360 Yes No
PW - 3076 70.7 1.59 0.0735 0.035 Actual/360 Yes No
PW - 5083 71.1 1.24 0.0735 0.035 Actual/360 Yes No
PW - 4678 42.7 1.67 0.0735 0.035 Actual/360 Yes No
PW - 3426 71.7 1.48 0.0735 0.035 Actual/360 Yes No
PW - 3893 76.6 1.5 0.0735 0.035 Actual/360 Yes No
PW - 2443 74.3 1.33 0.0735 0.035 Actual/360 Yes No
PW - 4991 76.3 1.25 0.0735 0.035 Actual/360 Yes No
PW - 3545A
PW - 3545B
PW - 3545 76.9 1.6 0.0735 0.035 Actual/360 Yes No
PW - 3616 39.6 2.21 0.0735 0.035 Actual/360 Yes No
PW - 3968 74 1.3 0.0735 0.035 Actual/360 No No
PW - 2509 65.8 1.58 0.0735 0.035 Actual/360 Yes No
PW - 3807 72.4 1.2 0.0735 0.035 Actual/360 Yes No
PW - 6377 73.9 1.32 0.0735 0.035 Actual/360 Yes No
PW - 3970 74.5 1.49 0.0735 0.035 Actual/360 Yes No
PW - 3093 70.3 1.43 0.0735 0.035 Actual/360 Yes No
PW - 3031 70.2 1.67 0.0735 0.035 Actual/360 Yes No
PW - 3687 61.9 2.16 0.0735 0.035 Actual/360 Yes No
PW - 2799 49.4 1.73 0.0735 0.035 Actual/360 Yes No
PW - 7134A
PW - 7134B
PW - 7134 78.7 1.28 0.0735 0.035 Actual/360 Yes No
PW - 7133 80.1 1.27 0.0735 0.035 Actual/360 Yes No
PW - 3570 73.8 1.75 0.0735 0.035 Actual/360 Yes No
PW - 3176 74.1 1.56 0.0735 0.035 Actual/360 Yes No
ML-123 74.2 1.38 0.0735 0.035 Actual/360 Yes No
PW - 4546 74.6 1.31 0.0735 0.035 Actual/360 Yes No
PW - 7021 77.7 1.27 0.0735 0.035 Actual/360 Yes No
PW - 3214 72.4 1.39 0.0735 0.035 Actual/360 Yes No
PW - 4426 68 1.51 0.0735 0.035 Actual/360 Yes No
PW - 4897 62.4 1.55 0.0735 0.035 Actual/360 Yes No
PW - 2903 75.5 1.25 0.0735 0.035 Actual/360 Yes No
PW - 2495 72.9 1.24 0.0735 0.035 Actual/360 Yes No
PW - 3618 44.9 1.57 0.0735 0.035 Actual/360 Yes No
PW - 1445 75.1 1.28 0.0735 0.035 Actual/360 Yes No
PW - 4309 40.4 2.78 0.0735 0.035 Actual/360 Yes No
ML-145 76.4 1.38 0.0735 0.035 Actual/360 Yes No
PW - 4038 74.5 1.4 0.0735 0.035 Actual/360 Yes No
PW - 4614 50 1.89 0.0735 0.035 Actual/360 Yes No
PW - 3619 17.7 4.01 0.0735 0.035 Actual/360 Yes No
PW - 4371 72.2 1.53 0.0735 0.035 Actual/360 Yes No
PW - 5254 74.7 1.29 0.0735 0.035 Actual/360 Yes No
ML-114 68.4 1.44 0.0735 0.035 Actual/360 No No
PW - 3515 67.2 1.42 0.0735 0.035 Actual/360 Yes No
PW - 1663 79 1.48 0.0735 0.035 Actual/360 Yes No
PW - 5947 72.5 1.4 0.0735 0.035 Actual/360 Yes No
</TABLE>
<PAGE>
EXHIBIT C
INVESTMENT REPRESENTATION LETTER
PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Merrill Lynch, Pierce, Fenner & Smith Incorporated
100 Church Street, 18th Floor
New York, New York 10080
PaineWebber Mortgage Acceptance Corporation V
1285 Avenue of the Americas
New York, New York 10019
LaSalle Bank National Association,
as Certificate Registrar
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60603
Attention: Corporate Trust Services Group -- PaineWebber
Mortgage Acceptance Corporation V Series 1999-C1
Re: Transfer of PaineWebber Mortgage Acceptance Corporation V
Commercial Mortgage Pass-Through Certificates, Series 1999-C1
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of June 1, 1999 (the "Pooling and Servicing
Agreement"), by and among PaineWebber Mortgage Acceptance Corporation V, as
Depositor, Banc One Mortgage Capital Markets, LLC, as Servicer, Banc One
Mortgage Capital Markets, LLC, as Special Servicer, ABN AMRO Bank N.V., as
Fiscal Agent and LaSalle Bank National Association, as Trustee on behalf of the
holders of PaineWebber Mortgage Acceptance Corporation V Commercial Mortgage
Pass-Through Certificates, Series 1999-C1 in connection with the transfer by
____________________ (the "Seller") to the undersigned (the "Purchaser") of
$_____________________ Balance of Class Certificates (the "Certificates").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
1. In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:(1)
- --------
(1) Purchaser must include one of the following two certifications, and if it
certifies under paragraph (b) it must include the further certification as to
the type of entity as indicated therein.
C-1
<PAGE>
(a) |_| The Purchaser is purchasing a Class of Regular Certificates and is an
institutional "accredited investor" (an entity meeting the requirements
of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act of 1933, as amended (the "1933 Act") or an entity all of the equity
owners of which come within such paragraphs) and has such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of its investment in the Certificates,
and the Purchaser and any accounts for which it is acting are each able
to bear the economic risk of the Purchaser's or such account's
investment. The Purchaser is acquiring the Certificates purchased by it
for its own account or for one or more accounts (each of which is an
"institutional accredited investor") as to each of which the Purchaser
exercises sole investment discretion, and is not acquiring such
Certificates with a view to any resale or distribution thereof other
than in accordance with the restrictions set forth in Section 5.02 of
the Pooling and Servicing Agreement. The Purchaser hereby undertakes to
reimburse the Trust Fund for any costs incurred by it in connection
with this transfer.
(b) |_| (i) The Purchaser is purchasing a Class of Regular Certificates or a
Class of Residual Interests and is aware that (x) (in the case of the
initial transfer) the transfer is being made in reliance on Section
4(2) of the Securities Act of 1933, as amended (the "1933 Act") without
a view to any resale or distribution and (y) (in the case of subsequent
transfers) is being made in reliance on Rule 144A promulgated under the
1933 Act; (ii) in the case of subsequent transfers the Purchaser has
had the opportunity to obtain the information required to be provided
pursuant to paragraph (d)(4)(i) of Rule 144A; and (iii) the Purchaser
is a "qualified institutional buyer" within the meaning of Rule 144A
because (y) as of the end of the Purchaser's most recent fiscal year it
owned or invested on a discretionary basis $_______________(2) eligible
securities (excluding affiliate's securities, bank deposit notes and
CDs, loan participations, repurchase agreements, securities owned but
subject to a repurchase agreement and swaps) and (z) the Purchaser is
one of the following entities:
|_| an insurance company as defined in Section 2(13) of the Act; or(3)
- ---------------
(2) Purchaser must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Purchaser is a dealer, in which case Purchaser
must own and/or invest on a discretionary basis at least $10,000,000 in
securities.
(3) A purchase by an insurance company for one or more of its separate accounts,
as defined by section 2(a)(37) of the Investment Company Act of 1940, which are
neither registered nor required to be registered thereunder, shall be deemed to
be a purchase for the account of such insurance company.
C-2
<PAGE>
|_| an investment company registered under the Investment Company Act of
1940, as amended, or any business development company as defined in
Section 2(a)(48) of the Investment Company Act of 1940, as amended,
that is part of a Family of Investment Companies (as defined below)
which owns in the aggregate at least $100,000,000 of securities of
issuers other than issuers that are affiliated with the investment
company or are part of such Family of Investment Companies. The term
"Family of Investment Companies," as used herein, means two or more
registered investment companies (or series thereof), except for a unit
investment trust whose assets consist solely of shares of one or more
registered investment companies, that have the same investment adviser
(or, in the case of unit investment trusts, the same depositor) or
investment advisers (or, in the case of unit investment trusts,
depositors) that are affiliated by virtue of being majority owned
subsidiaries of the same parent or because one investment adviser or
depositor is a majority owned subsidiary of the other.
|_| a Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958; or
|_| a plan (i) established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its
political subdivisions, the laws of which permit the purchase of
securities of this type, for the benefit of its employees and (ii) the
governing investment guidelines of which permit the purchase of
securities of this type; or
|_| a business development company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940, as amended;
|_| a corporation (other than a U.S. bank, savings and loan association or
equivalent foreign institution), partnership, Massachusetts or similar
business trust, or an organization described in Section 501(c)(3) of
the Internal Revenue Code; or
|_| an investment adviser registered under the Investment Advisers Act; or
|_| a U.S. bank, savings and loan association or equivalent foreign
institution, which has an audited net worth of at least $25 million as
demonstrated in its latest annual financial statements; or
C-3
<PAGE>
|_| at least $10 million, and the undersigned is a broker-dealer
registered with the SEC; or
|_| less than $10 million, and the undersigned is a broker-dealer
registered with the SEC and will only purchase Rule 144A securities in
transactions in which it acts as a riskless principal (as defined in
Rule 144A); or
|_| less than $100 million, and the undersigned is an investment company
registered under the Investment Company Act of 1940, as amended,
which, together with one or more registered investment companies
having the same or an affiliated investment adviser, owns at least
$100 million of eligible securities; or
|_| less than $100 million, and the undersigned is an entity, all the
equity owners of which are "Qualified Institutional Buyers," as
defined in Rule 144A.
2. If the Purchaser has certified that it is an institutional
"accredited investor" pursuant to Paragraph 1(a) above or that is a "qualified
institutional buyer" purchasing in the initial sale pursuant to 1(b) (i)(x)
above, the Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale to (i) "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof, or (ii)
(with respect to Regular Certificates only) to institutional "accredited
investors" meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of
Regulation D promulgated under the 1933 Act or entities all of the equity owners
of which come within such paragraphs, pursuant to any other exemption from the
registration requirements of the 1933 Act, subject in the case of this clause
(ii) to (w) the receipt by the Certificate Registrar of a letter substantially
in the form hereof, (x) the receipt by the Certificate Registrar of an opinion
of counsel acceptable to the Certificate Registrar that such reoffer, resale,
pledge or transfer is in compliance with the 1933 Act, (y) the receipt by the
Certificate Registrar of such other evidence acceptable to the Certificate
Registrar that such reoffer, resale, pledge or transfer is in compliance with
the 1933 Act and other applicable laws, and (z) a written undertaking to
reimburse the Trust for any costs incurred by it in connection with the proposed
transfer. The Purchaser understands that the Certificate (and any subsequent
Certificate) has not been registered under the 1933 Act, by reason of a
specified exemption from the registration provisions of the 1933 Act which
depends upon, among other things, the bona fide nature of the Purchaser's
investment intent (or intent to resell to only certain investors in certain
exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum relating
to the Certificates (the "Private Placement Memorandum") and the agreements and
other materials referred to therein and has had the opportunity to ask questions
and receive answers concerning the terms and conditions of the transactions
contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any Certificate
C-4
<PAGE>
issued on transfer or exchange thereof) has not been registered or qualified
under the 1933 Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold except to an "qualified
institutional buyer" or (in the case of Regular Certificates only) to an
institutional "accredited investor."
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner of
a Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
6. The Purchaser covenants that, in connection with a request to the
trustee, Servicer or Special Servicer, it will take and use the provided
information on a confidential basis and will not buy or sell any Certificates on
the basis of such information unless and until such information is either (i)
included, summarized or described in a communication to Certificateholders of
other Classes, on or after the date of such communication, or (ii) contained in
a report in one of the forms attached to the Pooling and Servicing Agreement as
Exhibit H, Exhibit I-1, Exhibit I-2, Exhibit I-3, Exhibit I-4, Exhibit I-5,
Exhibit I-6, Exhibit I-7, Exhibit I-8, Exhibit I-9, Exhibit I-10 or Exhibit I-11
that is prepared by the Servicer or the Trustee and that is made available to
the Certificateholders on each Distribution Date as set forth in Section 4.02 of
the Pooling and Servicing Agreement, as of the related Distribution Date, or
(iii) made publicly available by filing pursuant to the Securities Exchange Act
of 1934, as amended, or otherwise, on or after the date of such filing or other
availability, or (iv) made available to Certificateholders of other Classes by
Trustee posting to a world wide website accessible by such Certificateholders,
or by a comparably accessible posting by a financial publisher to whom the
Trustee or Servicer has provided such information (whether or not any access fee
is charged by such financial publisher for access to such information), on or
after the date of any such posting, by the Trustee, Servicer or Special Servicer
acting in compliance with its duties and obligations under the Pooling and
Servicing Agreement.
7. The Purchaser will not sell or otherwise transfer any portion of the
Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
8. Check one of the following:(4)
|_| The Purchaser is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or
successor form).
|_| The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be
withheld by the Trustee (or its agent) or the Paying Agent with
respect to distributions to be made on the Certificate. The
Purchaser has attached hereto either (i) a duly executed IRS
Form W-8 (or successor form), which identifies such Purchaser as
the beneficial owner of the Certificate and states that such
Purchaser is not a U.S. Person or (ii) two duly executed copies
of IRS Form 4224 (or successor form), which identify such
- -----------
(4) Each Purchaser must include one of the two alternative certifications.
C-5
<PAGE>
Purchaser as the beneficial owner of the Certificate and state
that interest and original issue discount on the Certificate and
Permitted Investments is, or is expected to be, effectively
connected with a U.S. trade or business. The Purchaser agrees to
provide to the Certificate Registrar updated IRS Forms W-8 or
IRS Forms 4224, as the case may be, any applicable successor IRS
forms, or such other certifications as the Certificate Registrar
may reasonably request, on or before the date that any such IRS
form or certification expires or becomes obsolete, or promptly
after the occurrence of any event requiring a change in the most
recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United States
for U.S. federal income tax purposes, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any of its
political subdivisions, or an estate the income of which is subject to U.S.
federal income taxation regardless of its source or a trust if (A) for taxable
years beginning after August 20, 1996 (or for taxable years ending after August
20, 1999, if the trustee has made an application election), a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more United States fiduciaries have the authority to
control all substantial decisions of such trust, or (B) for all other taxable
years, such trust is subject to United States federal income tax regardless of
the source of its income.
9. Please make all payments due on the Certificates:(5)
|_| (a) by wire transfer to the following account at a bank or
entity in New York, New York, having appropriate facilities
therefor:
Bank: _____________________
ABA#: _____________________
Account #: _____________________
Attention: _____________________
|_| (b) by mailing a check or draft to the following address:
___________________________
___________________________
___________________________
[Signature appears on next page]
- --------------
(5) Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b).
C-6
<PAGE>
Very truly yours,
[NAME OF PURCHASER]
By: _________________________
Name:
Title
Dated: _______________
C-7
<PAGE>
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO SECTION
860E(e)(4) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That [he] [she] is [Title of Officer] of [Name of Transferee] (the
"Transferee"), a [description of type of entity] duly organized and existing
under the laws of the [State of ] [United States], on behalf of which he makes
this affidavit.
2. That the Transferee's Taxpayer Identification Number is [ ]
3. That the Transferee of a PaineWebber Mortgage Acceptance Corporation
V Commercial Mortgage Pass-Through Certificate, Series 1999-C1, Class [R] [LR]
Certificate (the "Class [R] [LR] Certificate") is not a Disqualified
Organization (as defined below) or an agent thereof (including nominee,
middleman or other similar person) (an "Agent"), an ERISA Prohibited Holder or a
Non-U.S. Person (as defined below). For these purposes, a "Disqualified
Organization" means 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 a majority of its
board of directors is not selected by such governmental unit), (ii) a foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (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(a)(2)(C) of the Code and (v)
any other Person so designated by the Servicer based upon an Opinion of Counsel
that the holding of an Ownership Interest in a Residual Certificate by such
Person may cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC 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. For
these purposes, "ERISA Prohibited Holder" means an employee benefit plan subject
to Title I of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or section 4975 of the Code or any governmental plan (as defined in
Section 3(32) of ERISA) subject to any federal, state or local law which is, to
a material extent, similar to the foregoing provisions of ERISA or the Code
(each, a "Plan") or a Person acting on behalf of or investing the assets of such
Plan. For these purposes, "Non-U.S. Person" means any person other than a U.S.
Person, unless, with respect to the Transfer of a Residual
D-1-1
<PAGE>
Certificate, (i) such person holds such Residual Certificate in connection with
the conduct of a trade or business within the United States and furnishes the
Transferor and the Certificate Registrar with an effective Internal Revenue
Service Form 4224 or (ii) the Transferee delivers to both the Transferor and the
Certificate Registrar an opinion of a nationally recognized tax counsel to the
effect that such Transfer is in accordance with the requirements of the Code and
the regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes.
4. That the Transferee historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and the
Transferee intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax liabilities
with respect to the Class [R] [LR] Certificate in excess of any cash flow
generated by the Class [R] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R] [LR]
Certificate to any Person or entity unless (a) the Transferee has received from
such Person or entity an affidavit substantially in the form of this Transfer
Affidavit and (b) the Transferee provides to the Certificate Registrar a letter
substantially in the form of Exhibit D-2 to the Pooling and Servicing Agreement
certifying that it has no actual knowledge that such Person or entity is a
Disqualified Organization or an Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person and that it has no reason to know that such Person or entity
does not satisfy the requirements set forth in paragraph 4 hereof.
7. That the Transferee agrees to such amendments of the Pooling and
Servicing Agreement dated as of June 1, 1999 among PaineWebber Mortgage
Acceptance Corporation V, as Depositor, Banc One Mortgage Capital Markets, LLC.,
as Servicer, Banc One Capital Markets, LLC, as Special Servicer, LaSalle Bank
National Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent (the
"Pooling and Servicing Agreement"), as may be required to further effectuate the
restrictions on transfer of the Class [R] [LR] Certificate to such a
Disqualified Organization or an Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person. To the extent not defined herein, the capitalized terms used
herein shall have the meanings assigned thereto in the Pooling and Servicing
Agreement.
8. That, if a "tax matters person" is required to be designated with
respect to the [Upper-Tier REMIC] [Lower-Tier REMIC], the Transferee agrees to
act as "tax matters person" and to perform the functions of "tax matters person"
of the [Upper-Tier REMIC] [Lower-Tier REMIC] pursuant to Section 10.01(c) of the
Pooling and Servicing Agreement, and agrees to the irrevocable designation of
the Trustee as the Transferee's agent in performing the function of "tax matters
person."
9. The Transferee has reviewed, and agrees to be bound by and to abide
by, the provisions of Section 5.02(d) of the Pooling and Servicing Agreement
concerning registration of the transfer and exchange of Class [R] [LR]
Certificates.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, by its [Title of Officer] this _____ day of 19_ .
D-1-2
<PAGE>
[NAME OF TRANSFEREE]
By:
[Name of Officer]
[Title of Officer]
Personally appeared before me the above-named [Name of Officer], known
or proved to me to be the same person who executed the foregoing instrument and
to be the [Title of Officer] of the Transferee, and acknowledged to me that he
[she] executed the same as his [her] free act and deed and the free act and deed
of the Transferee. Subscribed and sworn before me this day of , 19__.
NOTARY PUBLIC
COUNTY OF
STATE OF
My commission expires the ____day of , 19__.
D-1-3
<PAGE>
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
[Date]
____________________________,
as Certificate Registrar
Attention:
Re: PaineWebber Mortgage Acceptance Corporation V
Commercial Mortgage Pass-Through Certificates, Series 1999-C1
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee], and
has no actual knowledge that such affidavit is not true and has no reason to
know that the requirements set forth in paragraphs 3 and 4 thereof are not
satisfied or that the information contained in paragraphs 3 and 4 thereof is not
true.
Very truly yours,
[Transferor]
D-2-1
<PAGE>
EXHIBIT E
[INTENTIONALLY OMITTED]
E-1
<PAGE>
EXHIBIT F
REQUEST FOR RELEASE
[Date]
[TRUSTEE]
Re: PaineWebber Mortgage Acceptance Corporation V
Commercial Mortgage Pass-Through Certificates,
Series 1999-C1,
REQUEST FOR RELEASE
Dear ,
In connection with the administration of the Mortgage Files held by or
on behalf of you as Trustee under a certain Pooling and Servicing Agreement
dated as of June 1, 1999 (the "Pooling and Servicing Agreement"), by and among
PaineWebber Mortgage Acceptance Corporation V, as depositor, ABN AMRO Bank N.V.,
as Fiscal Agent, [the undersigned, as servicer ("the Servicer"), Banc One
Capital Markets, LLC, as special servicer,] [Banc One Capital Markets, LLC, as
servicer (the "Servicer"), the undersigned, as special servicer (the "Special
Servicer"),] and you, as trustee, the undersigned hereby requests a release of
the Mortgage File (or the portion thereof specified below) held by or on behalf
of you as Trustee with respect to the following described Mortgage Loan for the
reason indicated below. Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
____1. Mortgage Loan paid in full. The [Servicer] [Special Servicer]
hereby certifies that all amounts received in connection with the
Mortgage Loan have been or will be credited to the Certificate Account
pursuant to the Pooling and Servicing Agreement.
____2. The Mortgage Loan is being foreclosed.
____3. 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, or unless the Mortgage Loan is
F-1
<PAGE>
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.
[SERVICER][SPECIAL SERVICER]
By:
Name:
Title:
F-2
<PAGE>
EXHIBIT G
FORM OF ERISA REPRESENTATION LETTER
PaineWebber Mortgage Acceptance Corporation V
1285 Avenue of the Americas
New York, New York 10019
Attention: Steven J. Plust
LaSalle National Bank,
as Certificate Registrar
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60674
Attention: Asset-Backed Securities Trust Services Group, PW V 1999-1
Re: Transfer of PaineWebber Mortgage Acceptance Corporation V,
Commercial Mortgage Pass-Through Certificates, Series 1999-C1
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $_______________
initial Certificate Balance of PaineWebber Mortgage Acceptance Corporation V,
Commercial Mortgage Pass-Through Certificates, Series 1999-C1, Class ______ (the
"Certificate") issued pursuant to that certain Pooling and Servicing Agreement
dated as of June 1, 1999 (the "Pooling and Servicing Agreement"), by and among
PaineWebber Mortgage Acceptance Corporation V, as Depositor, Banc One Mortgage
Capital Markets, LLC, as Servicer, Banc One Mortgage Capital Markets, LLC, as
Special Servicer, ABN AMRO Bank N.V., as Fiscal Agent and LaSalle Bank National
Association, as Trustee. Capitalized terms used and not otherwise defined herein
have the respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, the undersigned hereby represents and
warrants to you as follows:
The Purchaser of any Class of Certificates (other than Class A or Class
X) is not (i) an employee benefit plan subject to the fiduciary responsibility
provisions of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code"), or a governmental plan (as defined in Section 3(32) of ERISA) subject
to any federal, state or local law ("Similar Law") which is, to a material
extent, similar to the foregoing provisions of ERISA or the Code (each a "Plan")
or (ii) a person acting on behalf of or using the assets of any such Plan
(including an entity whose underlying assets include Plan assets by reason of
investment in the entity by such Plan and the application of Department of Labor
Regulation ss. 2510.3-101), other than an insurance company using the assets of
its general account under circumstances whereby the purchase and holding of such
Class of Certificates by such insurance company would be exempt from the
prohibited transaction provisions of ERISA and the Code under Prohibited
Transaction Class Exemption 95-60.
G-1
<PAGE>
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___th day of ______, _______.
Very truly yours,
____________________________
[The Purchaser]
By:_________________________
Name:
Title:
G-2
<PAGE>
EXHIBIT H
FORM OF DISTRIBUTION DATE STATEMENT
[TO COME FROM TRUSTEE]
H-1
<PAGE>
EXHIBIT I-1
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
I-1-1
<PAGE>
EXHIBIT I-2
FORM OF DELINQUENT LOAN STATUS REPORT
I-2-1
<PAGE>
EXHIBIT I-3
FORM OF HISTORICAL LOAN MODIFICATION REPORT
I-3-1
<PAGE>
EXHIBIT I-4
FORM OF HISTORICAL LOSS ESTIMATE REPORT
I-4-1
<PAGE>
EXHIBIT I-5
FORM OF REO STATUS REPORT
I-5-1
<PAGE>
EXHIBIT I-6
FORM OF WATCH LIST REPORT
I-6-1
<PAGE>
EXHIBIT I-7
FORM OF OPERATING STATEMENT ANALYSIS REPORT
I-7-1
<PAGE>
EXHIBIT I-8
FORM OF NOI ADJUSTMENT WORKSHEET
I-8-1
<PAGE>
EXHIBIT I-9
FORM OF CSSA LOAN SET-UP FILE
I-9-1
<PAGE>
EXHIBIT I-10
FORM OF CSSA PERIODIC LOAN UPDATE FILE
I-10-1
<PAGE>
EXHIBIT I-11
FORM OF CSSA PROPERTY FILE
I-11-1
<PAGE>
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
-----------------------------------------
THIS MORTGAGE LOAN PURCHASE AND SALE AGREEMENT (this "Agreement") dated
as of June 1, 1999, is between PaineWebber Mortgage Acceptance Corporation V, a
Delaware corporation (the "Purchaser"), and Paine Webber Real Estate Securities
Inc., a Delaware Corporation (the "Mortgage Loan Seller").
The Mortgage Loan Seller intends to sell, assign and transfer to the
Purchaser, subject to the terms and conditions set forth below, certain mortgage
loans (the "Mortgage Loans"), which are described in, and set forth in, the
mortgage loan schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit
A.
The Purchaser intends to deposit the Mortgage Loans into a trust fund
(the "Trust Fund"), beneficial ownership of which will be evidenced by a series
of mortgage pass-through certificates (the "Certificates"). The Trust Fund will
be created and the Certificates will be issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") dated as of June 1,
1999, by and among PaineWebber Mortgage Acceptance Corporation V, as depositor
(the "Depositor"), Banc One Mortgage Capital Markets, LLC, as servicer (the
"Servicer"), Banc One Mortgage Capital Markets, LLC, as special servicer (the
"Special Servicer"), LaSalle Bank National Association, as trustee (in such
capacity, the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal
Agent"). The Purchaser intends to sell certain of the Certificates (the
"Privately Placed Certificates") in a private placement pursuant to Section 4(2)
of the Securities Act of 1933 (the "Securities Act") through PaineWebber
Incorporated and Merrill Lynch, Pierce, Fenner & Smith Incorporated (in such
capacity, the "Placement Agents") on the Closing Date (defined below) pursuant
to a Certificate Purchase Agreement (the "Certificate Purchase Agreement") dated
as of June 7, 1999. The Purchaser intends to sell certain of the Certificates
(the "Publicly Offered Certificates") to PaineWebber Incorporated and Merrill
Lynch, Pierce, Fenner & Smith Incorporated (in such capacity, the
"Underwriters") on the Closing Date pursuant to an underwriting agreement (the
"Underwriting Agreement") dated as of June 1, 1999. The transactions
contemplated by the Pooling and Servicing Agreement are sometimes referred to
herein as the "Securitization Transaction." Capitalized terms used but not
otherwise defined herein shall have the respective meanings ascribed to such
terms in the Pooling and Servicing Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, which are
incorporated into the operative provisions of this Agreement by this reference,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby conclusively acknowledged, the parties hereto hereby agree as
follows:
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<PAGE>
ARTICLE I.
DEFINITIONS
"Allocable Share": A fraction, the numerator of which is the stated
principal balance of the Mortgage Loans and the denominator is the sum of (i)
the stated principal balance of the Mortgage Loans and (ii) the stated principal
balance of the mortgage loans sold to the Purchaser by Merrill Lynch Mortgage
Capital Inc. pursuant to the Merrill Lynch Mortgage Loan Purchase and Sale
Agreement, or as otherwise separately agreed upon in writing by the Purchaser,
the Mortgage Loan Seller and Merrill Lynch Mortgage Capital Inc.
"Bondable Lease": The bondable lease identified in Exhibit E attached
hereto.
"Breach": The meaning ascribed to such term in Section 3.3.
"Closing Date": June 7, 1999.
"Credit Lease": A lease of real property on a long-term net-lease basis
to a Tenant whose long-term unsecured debt rating (or the long-term unsecured
debt rating of the guarantor of its obligations under the related lease) is the
basis on which the related Mortgage Loan Seller underwrote the related Mortgage
Loan.
"Credit Tenant Loan": Any Mortgage Loan that is secured by a Mortgage
on a Mortgaged Property that is leased on a long-term net-lease basis to a
tenant whose long-term unsecured debt rating (or the long-term unsecured debt
rating of the guarantor of its obligations under the related lease) is the basis
on which the related Mortgage Loan Seller underwrote the related Mortgage Loan.
"Credit Tenant Property": A Mortgaged Property that is leased to one or
more tenants pursuant to one or more Credit Leases.
"Cut-off Date": June 1, 1999, except that with respect to one Mortgage
Loan, the Cut-off Date is June 5, 1999.
"Defective Document Mortgage Loan": The meaning ascribed to such term
in Section 3.3(b).
"Initial Pool Balance": An amount equal to approximately $704,764,603.
"Merrill Lynch Mortgage Loan Purchase and Sale Agreement": That certain
mortgage loan purchase and sale agreement, together with the supplemental
mortgage loan purchase and sale agreement, dated as of the date hereof, by and
between Merrill Lynch Mortgage Capital Inc., as mortgage loan seller, and the
Purchaser.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust or other instrument securing a Mortgage Note and creating a lien on the
fee or leasehold interest in the related Mortgaged Property.
2
<PAGE>
"Mortgage File": The meaning ascribed to such term in Section 2.4(a).
"Mortgage Loan": Each of the mortgage loans transferred and assigned to
the Purchaser pursuant to Section 2.03 of this Agreement. As used herein, the
term "Mortgage Loan" includes each related Mortgage Note, the related Mortgage
and other documents contained in the related Mortgage File and any related
agreements.
"Mortgage Loan Document": Each related Mortgage Note, Mortgage,
Assignment of Leases (if any) and other agreements executed in connection with
such Mortgage Loan, collectively, the "Mortgage Loan Documents."
"Mortgage Note": Each of the original executed notes evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any IDOT Guarantor and any other Person that owns or has
acquired the related Mortgaged Property and/or assumed the obligations of the
original obligor under the Mortgage Note. The representations and warranties
made by the Mortgage Loan Seller in this Agreement as to "each Mortgagor" are
given with respect to the obligor or the IDOT Guarantor to the extent
applicable.
"Policies": The meaning ascribed to such term in Section 3.2(b)(lii).
"Prospectus Supplement": That certain prospectus supplement, dated June
1, 1999, related to the Publicly Offered Certificates.
"Reimbursement Rate": The rate per annum applicable to the accrual of
interest on Servicing Advances and P&I Advances in accordance with the Pooling
and Servicing Agreement, which rate per annum shall equal the "Prime Rate"
published in the "Money Rates" section of "The Wall Street Journal" (or, if such
section or publication is no longer available, such other comparable publication
as determined by the Trustee in its reasonable discretion) as may be in effect
from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Trustee in its reasonable discretion) as
may be in effect from time to time.
"Repurchase Price": With respect to any Mortgage Loan or REO Loan
required to be purchased pursuant to Section 3.3, an amount equal to the sum of:
(i) the outstanding principal balance of such Mortgage Loan as of the
date of purchase;
(ii) all accrued and unpaid interest to but not including the Due Date
in the Due Period during which such Mortgage Loan or REO Loan was
purchased;
(iii) all related unreimbursed Servicing Advances and accrued and
unpaid interest on related Advances at the Reimbursement Rate and
unpaid Special Servicing Fees allocable to such Mortgage Loan;
plus
3
<PAGE>
(iv) all reasonable out-of-pocket expenses reasonably incurred or to
be incurred by the Servicer, the Special Servicer, the Depositor
or the Trustee in respect of the Breach or defect giving rise to
the repurchase obligation, including any expenses arising out of
the enforcement of the repurchase obligation.
"Tenant": A tenant of a Credit Tenant Property.
[End of Article I]
4
<PAGE>
ARTICLE II.
PURCHASE, SALE AND CONVEYANCE OF MORTGAGE LOANS
2.1. Agreement to Sell Mortgage Loans. (a) Subject to the terms and
conditions of this Agreement, the Mortgage Loan Seller agrees to sell, and the
Purchaser agrees to purchase, the Mortgage Loans on the Closing Date; provided,
however, that the Purchaser shall not be obligated to purchase any Mortgage Loan
which fails to satisfy the representations and warranties set forth in Section
3.1 hereof. (b) The closing for the purchase and sale of the Mortgage Loans
shall take place at the offices of O'Melveny & Myers LLP, New York, New York, at
10:00 a.m. New York time, on the Closing Date.
2.2. Purchase Price. On the Closing Date, as full consideration for the
Mortgage Loan Seller's sale of the Mortgage Loans to the Purchaser, the
Purchaser will deliver to the Mortgage Loan Seller an amount equal to
$464,667,812.67 in immediately available funds, which represents the purchase
price of the Mortgage Loans net of the Mortgage Loan Seller's Allocable Share of
expenses as provided in Section 5.1(b).
2.3. Conveyance of Mortgage Loans. On the Closing Date, the Mortgage
Loan Seller shall sell, transfer, assign, set over and otherwise convey to the
Purchaser, without recourse but subject to the terms of this Agreement, and the
Purchaser shall purchase, all right, title and interest of the Mortgage Loan
Seller in and to the Mortgage Loans, including: (i) all scheduled payments of
interest and principal due on or with respect to the Mortgage Loans after the
Cut-off Date (whether or not received); (ii) all other payments of interest and
principal received by the Mortgage Loan Seller on or with respect to the
Mortgage Loans after the Cut-off Date, other than any such payments of interest
or principal which were due on or prior to the Cut-off Date; and (iii) all of
the Mortgage Loan Seller's right, title and interest in and to the proceeds of
any related title, hazard or other insurance policies received by the Mortgage
Loan Seller on or with respect to the Mortgage Loans after the Cut-off Date.
Upon payment of the Purchase Price as provided in Section 2.2, the Mortgage Loan
Seller shall be deemed to have sold, transferred, assigned, set over and
conveyed to the Purchaser the Mortgage Loans, together with all right title and
interest of the Mortgage Loan Seller in and to the Mortgage Loans as described
in the immediately preceding sentence. Upon such sale the ownership of each
Mortgage Note, the Mortgage and all related documents and instruments contained
in the related Mortgage File shall immediately vest in the Purchaser, its
successors and assigns and the ownership of all records and documents with
respect to the related Mortgage Loan prepared by or which come into the
possession of the Mortgage Loan Seller shall immediately vest in the Purchaser,
its successors and assigns. The contents of any Mortgage File in the possession
of the Mortgage Loan Seller at any time after such sale, and any payments on the
Mortgage Loans due after the Cut-off Date and received by the Mortgage Loan
Seller, shall be held in trust by the Mortgage Loan Seller for the benefit of
the Purchaser, its successors and assigns as the owner thereof, and shall be
promptly delivered by the Mortgage Loan Seller to or upon the order of the
Purchaser, its successors and assigns.
2.4. Delivery of Mortgage Loan Documents. (a) On or before the Closing
Date, the Mortgage Loan Seller shall deliver to and deposit with, or cause to be
delivered to and
5
<PAGE>
deposited with, the Purchaser, the Trustee or a custodian of the Trustee (as
Purchaser shall direct), each of the following documents for each Mortgage Loan
(such documents, the "Mortgage File"):
(i) each original Mortgage Note (including, in the case of each IDOT
Loan, the note originally made by the borrower in favor of the
related originator and the note made by the IDOT Guarantor under
the related IDOT Guaranty in favor of the borrower under such
IDOT Loan), bearing, or accompanied by, all prior and
intervening endorsements or assignments showing a complete chain
of endorsement or assignment from the originator of the Mortgage
Loan to a Mortgage Loan Seller, and further endorsed (at the
direction of the Purchaser), on its face or by allonge attached
thereto, without recourse, to the order of the Trustee in the
following form: "Pay to the order of LaSalle Bank National
Association, as trustee for the registered Holders of
PaineWebber Mortgage Acceptance Corporation V Commercial
Mortgage Pass-Through Certificates, Series 1999-C1, without
recourse, representation or warranty, express or implied" or in
blank;
(ii) the original Mortgage (or a certified copy thereof from the
applicable recording office) and originals (or certified copies
from the applicable recording office) of any intervening
assignments thereof showing a complete chain of assignment from
the originator of the Mortgage Loan to the applicable Mortgage
Loan Seller, in each case with evidence of recording indicated
thereon;
(iii) an original assignment of the Mortgage, in recordable form, to
"LaSalle Bank National Association, as trustee for the
registered Holders of PaineWebber Mortgage Acceptance
Corporation V Commercial Mortgage Pass-Through Certificates,
Series 1999-C1" or in blank;
(iv) an original or copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage) and the originals
or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the applicable Mortgage Loan Seller, in each case with
evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in
recordable form, executed by the applicable Mortgage Loan Seller
to "LaSalle Bank National Association, as Trustee for the
benefit of Certificateholders of PaineWebber Commercial Mortgage
Pass-Through Certificates, Series 1999-C1" or in blank;
(vi) an original or copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and the originals
or copies of any intervening assignments thereof showing a
complete chain of assignment
6
<PAGE>
from the originator of the Mortgage Loan (if different than the
applicable Mortgage Loan Seller) to the applicable Mortgage Loan
Seller, in each case with evidence of recording thereon;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), in
recordable form, executed by the Mortgage Loan Seller to
"LaSalle Bank National Association, as Trustee for the benefit
of Certificateholders of PaineWebber Commercial Mortgage
Pass-Through Certificates, Series 1999-C1" or in blank;
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements,
with evidence of recording thereon, where appropriate, in those
instances where the terms or provisions of the Mortgage,
Mortgage Note or any related security document have been
consolidated or modified or the Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy thereof
effective as of the date of the recordation of the Mortgage
Loan, together with all endorsements or riders that were issued
with or subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien on the Mortgagor's fee
interest in the Mortgaged Property, or if the policy has not yet
been issued, an original or copy of a written commitment,
interim binder or the pro forma title insurance policy, dated as
of the date on which the related Mortgage Loan was funded;
(x) the original or a copy of any guaranty (other than the IDOT
Guaranty) of the obligations of the Mortgagor under the Mortgage
Loan;
(xi) all UCC Financing Statements and continuation statements or
copies thereof sufficient to perfect (and maintain the
perfection of) the security interest held by the originator of
the Mortgage Loan (and each assignee prior to the Trustee) in
and to the personalty of the Mortgagor at the Mortgaged Property
(in each case with evidence of filing thereon), and to transfer
such security interest to the Trustee;
(xii) the original power of attorney or a copy thereof (with evidence
of recording thereon) granted by the Mortgagor if the Mortgage,
any Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loan with Additional Debt that is
subordinate to such Mortgage Loan, a subordination agreement,
pursuant to which such Additional Debt is subordinated to such
Mortgage Loan;
(xiv) a survey of the related Mortgaged Property;
(xv) in the case of an IDOT Loan, an original of the related IDOT
Guaranty;
7
<PAGE>
(xvi) in the case of a CTL Loan, the original Residual Value Policy
and/or Lease Enhancement Policy, if any, with all endorsements;
(xvii) the original or copy of any related cash management agreements
and lockbox agreements, if any;
(xviii) the original or copy of any related environmental reports;
(xix) the original or copy of any related Sub-Servicing Agreement, if
any;
(xx) the original or copy of any related ground leases; and
(xxi) any additional documents required to be added to the Mortgage
File pursuant to this Agreement;
(b) If the Mortgage Loan Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original Mortgage Note, the Mortgage
Loan Seller shall deliver a copy or duplicate original of such Mortgage Note,
together with an affidavit certifying that the original thereof has been lost or
destroyed and indemnification of the Purchaser and of the Trustee on behalf of
the Trust Fund against any losses that the Trust Fund may incur by reason of
such lost or destroyed Mortgage Note. 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), (iv), (vi), (viii), (xi) and
(xii) of Section 2.4(a), with evidence of filing or recording thereon, solely
because of a delay caused by the public recording or filing office where such
document or instrument has been delivered for recordation or filing, the
delivery requirements of this Mortgage Loan Purchase Agreement shall be deemed
to have been satisfied as to such non-delivered document or instrument 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 or filing) is delivered to the Purchaser, 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
(certified by the appropriate county recorder's office, in the case of the
documents and/or instruments referred to in clause (ii) of Section 2.4(a) to be
a true and complete copy of the original thereof submitted for recording or
filing), with evidence of recording or filing thereon, is delivered to the
Purchaser, the Trustee or such Custodian within 120 days of the Closing Date (or
within such longer period after the Closing Date as the Purchaser may consent
to, which consent shall not be unreasonably withheld so long as the Mortgage
Loan Seller is, as certified in writing to the Purchaser and the Trustee no less
often than every 90 days, 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 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 this Section 2.4(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 and certified in the
case of the documents and/or instruments referred to in clause (ii) of Section
2.4(a) by the
8
<PAGE>
appropriate county recorder's office to be a true and complete copy of the
original thereof submitted for recording) is delivered to the Purchaser, the
Trustee or a Custodian appointed thereby on or before the Closing Date together
with an affidavit certifying that the original thereof has been lost or
destroyed. With respect to any Mortgage Loan, and notwithstanding the foregoing
or Section 2.4(a), the Mortgage Loan Seller may deliver a UCC-3 on or before the
Closing Date that does not contain the filing information for the related UCC-1
and/or UCC-2 if such UCC-1 and/or UCC-2 has not been returned to the Mortgage
Loan Seller by the applicable filing office, and the Mortgage Loan Seller may
deliver an assignment referred to in clauses (iii), (v) or (vii) of Section
2.4(a) that does not contain the recording information for the related Mortgage,
Assignment of Leases or Security Agreement, as applicable, if such Mortgage,
Assignment of Leases or Security Agreement has not been returned to the Mortgage
Loan Seller by the applicable recording office. The Mortgage Loan Seller hereby
authorizes the Purchaser, acting in its stead and on its behalf, to fill in any
missing filing or recording information or any instrument or document required
to be delivered pursuant to this subsection (b).
(c) Except under the circumstances provided for in the last sentence of
this subsection (c), the Mortgage Loan Seller shall as to each Mortgage Loan,
promptly (and in any event within 30 days of the later of the Closing Date and
the Purchaser's and Trustee's actual receipt of the related documents) cause the
related documents to be delivered to the Trustee in recordable form for
recording or filing, as the case may be, in the appropriate public office for
real property records or UCC Financing Statements, as appropriate, each
assignment referred to in clauses (iii), (v) and (vii) of Section 2.4(a) and
each UCC-3 to the Trustee referred to in clause (xi) of Section 2.4(a) as
indicated in such assignment documents. Each such assignment shall reflect that
it should be returned by the public recording office to the Trustee or its
designee following recording, and each such UCC-3 shall reflect that the file
copy thereof should be returned to the Trustee or its designee following filing.
If any such document or instrument is lost or returned unrecorded or unfiled, as
the case may be, because of a defect therein, the Purchaser or an assignee
thereof, which may include, the Trustee or a Custodian or its agent shall
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, all at the Mortgage Loan
Seller's expense. The Purchaser shall execute, or cause the Mortgage Loan Seller
to execute any replacement document or instrument being filed in substitution
for any such lost or returned unrecorded or unfiled document or instrument at
the Mortgage Loan Seller's expense and assist the Purchaser, the Trustee or a
Custodian or its agent in recording or filing such documents or instruments.
Notwithstanding the foregoing, there shall be no requirement to record any
assignment to the Trustee referred to in clause (iii), (v) or (vii) of the
Section 2.4(a), or to file any UCC-3 referred to in clause (xi) of Section
2.4(a) in those jurisdictions where, in the written opinion of local counsel of
Purchaser, the Trustee or a Custodian acceptable to the Purchaser and the
Trustee, such recordation and/or filing is not required to protect the
Purchaser's or the Trustee's interest in the Mortgage Loans against sale,
further assignment, satisfaction or discharge by the Mortgage Loan Seller or the
Purchaser.
(d) All documents and records in the Mortgage Loan Seller's possession
relating to the Mortgage Loans (including financial statements, operating
statements and any other information provided by the respective Mortgagor from
time to time) or copies thereof, that are not required to be a part of a
Mortgage File in accordance with the definition thereof shall be delivered to
the Servicer on or before the Closing Date.
9
<PAGE>
(e) Mortgage Loan Seller shall cause all funds on deposit in escrow
accounts maintained with respect to the Mortgage Loans in the name of the
Mortgage Loan Seller or any other name to be transferred to the Servicer
promptly after the Closing Date, but in all events within three (3) business
days after the Closing Date.
2.5. Acceptance of Mortgage Loans. Within 90 days of the Closing Date,
the Purchaser or an assignee thereof, which may include the Trustee or a
Custodian on its behalf, shall complete a review of each of the Mortgage Loan
Documents delivered or caused to be delivered by the Mortgage Loan Seller
constituting the Mortgage Files and shall certify, as to each Mortgage Loan,
that (i) all documents required to be delivered pursuant to Section 2.4 are in
its possession, (ii) such documents appear regular on their face and relate to
such Mortgage Loan, and (iii) based on the examinations referred to in this
Section 2.5 and only as to the foregoing documents, the information set forth in
the Mortgage Loan Schedule with respect to the items specified in clauses (i),
(ii)(a), (iv), (v), (vii) and (x)(c) of the definition of "Mortgage Loan
Schedule" set forth in the Pooling and Servicing Agreement is correct. If the
Purchaser or such assignee discovers or receives notice that any such document
described in the first or second preceding sentence is a Defective Document
Mortgage Loan, the Mortgage Loan Seller shall correct or cure any such omission
or defect or repurchase such Defective Document Mortgage Loan in accordance with
Section 3.3 of this Agreement.
[End of Article II]
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ARTICLE III.
REPRESENTATIONS, WARRANTIES AND COVENANTS;
REPURCHASE OF DEFECTIVE MORTGAGE LOANS
3.1. Representations and Warranties of the Purchaser.
(a) The Purchaser hereby represents and warrants that on the Closing Date:
(i) Purchaser Duly Formed and Authorized. The Purchaser is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, and the Purchaser 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,
including, but not limited to, the power and authority to purchase and
acquire the Mortgage Loans in accordance with this Agreement;
(ii) Legal and Binding Obligations. Assuming the due authorization,
execution and delivery of this Agreement by each other party hereto, this
Agreement and all of the obligations of the Purchaser hereunder are the
legal, valid and binding obligations of the Purchaser, enforceable against
the Purchaser 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);
(iii) No Conflict with Law or Agreements. The execution and delivery of
this Agreement and the performance by the Purchaser of its obligations
hereunder will not conflict with any provisions of any law or regulations
to which the Purchaser is subject, or conflict with, result in a breach of
or constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Purchaser or any
indenture, agreement or instrument to which the Purchaser is a party or by
which it is bound, or any order or decree applicable to the Purchaser, or
result in the creation or imposition of any lien on any of the Purchaser's
assets or property, which would materially and adversely affect the ability
of the Purchaser to carry out the transactions contemplated by this
Agreement; the Purchaser has obtained any consent, approval, authorization
or order of any court or governmental agency or body required for the
execution, delivery and performance by the Purchaser of this Agreement;
(iv) No Proceedings. There is no action, suit or proceeding pending or,
to the Purchaser's knowledge, threatened against the Purchaser in any court
or by or before any other governmental agency or instrumentality which
would
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materially and adversely affect the validity of the Mortgage Loans or the
ability of the Purchaser to carry out the transactions contemplated by this
Agreement.
3.2. Representations and Warranties of the Mortgage Loan Seller.
(a) The Mortgage Loan Seller hereby represents and warrants with respect to
itself that, as of the Closing Date that:
(i) Seller Duly Formed and Authorized. The Mortgage Loan Seller is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, and the Mortgage Loan 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, including, but not limited to, the power and authority
to sell, assign and transfer the Mortgage Loans in accordance with this
Agreement;
(ii) Legal and Binding Obligations. Assuming the due authorization,
execution and delivery of this Agreement by each other party hereto, this
Agreement and all of the obligations of the Mortgage Loan Seller hereunder
are the legal, valid and binding obligations of the Mortgage Loan Seller,
enforceable against the Mortgage Loan 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);
(iii) No Conflict with Law or Agreements. The execution and delivery of
this Agreement and the performance by the Mortgage Loan Seller of its
obligations hereunder will not conflict with any provisions of any law or
regulations to which the Mortgage Loan Seller is subject, or conflict with,
result in a breach of or constitute a default under any of the terms,
conditions or provisions of the certificate of incorporation or the by-laws
of the Mortgage Loan Seller or any indenture, agreement or instrument to
which the Mortgage Loan Seller is a party or by which it is bound, or any
order or decree applicable to the Mortgage Loan Seller, or result in the
creation or imposition of any lien on any of the Mortgage Loan Seller's
assets or property, which would materially and adversely affect the ability
of the Mortgage Loan Seller to carry out the transactions contemplated by
this Agreement; the Mortgage Loan Seller has obtained any consent,
approval, authorization or order of any court or governmental agency or
body required for the execution, delivery and performance by the Mortgage
Loan Seller of this Agreement;
(iv) No Proceedings. There is no action, suit or proceeding pending or,
to the Mortgage Loan Seller's knowledge, threatened against the Mortgage
Loan Seller in any court or by or before any other governmental agency or
instrumentality which would materially and adversely affect the validity of
the Mortgage Loans or the ability of the Mortgage Loan Seller to carry out
the transactions contemplated by this Agreement;
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(v) Mortgage Files in Possession. The Mortgage Loan Seller is in
possession of a Mortgage File with respect to each Mortgage Loan identified
on the Mortgage Loan Schedule and each such Mortgage File will be
transferred to the Purchaser or the Trustee as its designee. The Mortgage
Loan Seller has not withheld any material information with respect to the
Mortgage File;
(vi) No Material Default. The Mortgage Loan Seller is not in default in
the performance of any obligations, covenants or conditions contained in
any material agreement or instrument to which it is party, which default
might have consequences that would materially and adversely affect the
financial conditions or operations of the Mortgage Loan Seller or its
properties taken as a whole or would have consequences that would
materially and adversely affect its performance hereunder.
(b) Representations and Warranties as to the Mortgage Loans. The
Mortgage Loan Seller hereby represents and warrants with respect to each
Mortgage Loan that, as of the date specified below or, if no such date is
specified, as of the Cut-off Date:
(i) Mortgage Loan Schedule. The Mortgage Loan Schedule is true,
complete and accurate in all material respects as of June 1,
1999.
(ii) Representations and Warranties Remain True. The Mortgage Loan
Seller has not taken any action that would cause the
representations and warranties made by each Mortgagor under the
related Mortgage Loan not to be true. The Mortgage Loan Seller
has no knowledge that the material representations and
warranties made by the Mortgagor in each Mortgage Loan are not
true in any material respect.
(iii) No Fraudulent Acts by Mortgage Loan Seller, Originator or
Mortgagor. (A) Neither the Mortgage Loan Seller, nor, to the
Mortgage Loan Seller's best knowledge, (1) any originator other
than the Mortgage Loan Seller or (2) the Mortgagor, committed
any fraudulent acts during the origination process of any
Mortgage Loan, (B) with respect to each Mortgage Loan that
Mortgage Loan Seller originated, the origination of such
Mortgage Loan is in all material respects legal, proper and
prudent in accordance with customary industry standards utilized
by prudent institutional and commercial mortgage lenders and (C)
to the best of the Mortgage Loan Seller's knowledge, (1) the
origination of each Mortgage Loan purchased by the Mortgage Loan
Seller and (2) the servicing and collection of each Mortgage
Loan is in all material respects legal, proper and prudent in
accordance with customary industry standards utilized by prudent
institutional and commercial mortgage lenders or loan servicers
as appropriate.
(iv) Mortgage Loan Seller's Title to Mortgage Loans. Immediately
prior to the sale of the Mortgage Loan to the Depositor, the
Mortgage Loan Seller had good and marketable title to and was
the sole owner and holder of each Mortgage Loan, and the
assignment validly transferred its ownership of
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the Mortgage Loan, free and clear of any and all liens, pledges
and other encumbrances (other than the Mortgage Loan Seller's
obligation to repurchase defective Mortgage Loans), subject to
exceptions of the type set forth in item (xlv) below.
(v) No Delinquency. No monthly payment of principal of or interest
on any Mortgage Loan has been more than 30 days delinquent since
origination and as of the Cut-off Date for such Mortgage Loan,
no monthly payment of principal of or interest on such Mortgage
Loan is 30 or more days delinquent.
(vi) No Default. There is no material default, breach, violation or
event of acceleration existing under the related Mortgage or
Mortgage Note, and to the Mortgage Loan Seller's knowledge,
there is 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
such a default, breach, violation or event of acceleration.
(vii) No Modification or Release. Since origination, such Mortgage
Loan has not been modified, altered, satisfied, canceled,
subordinated or rescinded, with the exception of any
modification, alteration, satisfaction, cancellation,
subordination or recission specifically disclosed in a written
instrument that (A) was entered into prior to the Cut-off Date,
(B) has been recorded in the applicable public recording office
if necessary to maintain the priority of the lien of the related
Mortgage and related Security Agreements, if any, and (C) is
being delivered to the Trustee or Custodian as part of the
related Mortgage File. No material portion of the related
Mortgaged Property has been released from the lien of the
related Mortgage, in each case, 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. None of the related Mortgages contains terms
which provide for or require release of any portion of the
related Mortgaged Property from the lien of the Mortgage in any
manner which materially and adversely affects the adequacy of
the security provided by the Mortgaged Property.
(viii) No Insolvency. To the knowledge of the Mortgage Loan Seller,
neither the Mortgagor nor any guarantor is a debtor in any state
or federal bankruptcy or insolvency proceeding or any regulatory
proceeding.
(ix) No Proceedings. To the knowledge of the Mortgage Loan Seller, as
of the Closing Date, there is no pending action, suit or
proceeding, arbitration or governmental investigation against a
Mortgagor or Mortgaged Property, an adverse outcome of which
would materially and adversely affect such Mortgagor's ability
to perform under the related Mortgage Loan.
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(x) Single-Purpose Borrower. (A) the Mortgage Loan Documents
executed in connection with each Mortgage Loan require that the
related Mortgagor be a single-purpose entity, (B) the Mortgage
Loan Seller has not waived such covenants and has no knowledge
that the Mortgagor is not in compliance therewith, (C) with
respect to each Mortgage Loan with a Cut-off Date balance
greater than 1% of the Initial Pool Balance the related
Mortgagor is a single purpose entity and (D) the Mortgagor is
organized under the laws of a state, territory or district of
the United States. For purposes of this representation,
"single-purpose entity" shall mean an entity, other than an
individual, the organizational documents of which limit its
purpose to owning and operating a single property or group of
properties, does not engage in any business unrelated to such
property and its financing, and does not have any assets other
than those related to its interest in the related Mortgaged
Property or its financing, or any indebtedness other than as
permitted under the related Mortgage Loan.
(xi) Mortgagor Is The Sole Owner of Interest in Lease Payments. No
person other than the Mortgagor owns any interest in any
payments due under the leases relating to the Mortgaged
Property that is superior to or of equal priority with the
Mortgage Loan Seller's interest therein.
(xii) Defeasance; No REMIC Disqualification. With respect to any
Mortgage Loan that pursuant to the Mortgage Loan Documents can
be defeased, (A) the Mortgage Loan cannot be defeased within
two years of the Closing Date, (B) the Mortgagor can pledge
only United States government securities (within the meaning of
section 2(a)(16) of the Investment Company Act of 1940) as the
substitute collateral and (C) the Mortgagor can be required by
the Master Servicer to establish that the release of the lien
is to facilitate the disposition of the Mortgaged Property or
is in connection with some other customary commercial
transaction and not as part of an arrangement to collateralize
a REMIC offering with obligations that are not real estate
mortgages.
(xiii) REMIC Qualification. 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
Regulation ss.1.860G-2(f)(2) that treats a defective obligation
as a "qualified mortgage" or any substantially similar
successor provision) and any and all Prepayment Premiums and
Yield Maintenance Charges constitute "customary prepayment
penalties" within the meaning of Treasury Regulation
ss.1.860G-1(b)(2).
(xiv) Existing Indebtedness. Except as set forth in Exhibit D, there
are no subordinate or pari passu Mortgages encumbering the
related Mortgaged Property, no preferred equity interests held
by the Mortgage Loan Seller or mezzanine debt related to such
Mortgaged Property.
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(xv) No Additional Indebtedness. Except as set forth in Exhibit D,
each Mortgage Loan prohibits the related Mortgagor from
mortgaging or otherwise encumbering the Mortgaged Property and
from carrying any additional indebtedness except in connection
with (A) trade debt and equipment financings in the ordinary
course of Mortgagor's business and (B) liens arising by
operation of law that are contested in accordance with the
terms of the Mortgage Loan.
(xvi) Annual Reports. Each Mortgage Loan requires the related
Mortgagor to provide annual operating statements, rent rolls,
and other information that the holder of the Mortgage Loan may
reasonably request in connection with the related Mortgagor and
the related Mortgaged Property.
(xvii) Proceeds Fully Disbursed. The proceeds of each Mortgage Loan
have been fully disbursed and there is no requirement for
future advances thereunder and the Mortgage Loan Seller
covenants that it will not make any future advances under the
Mortgage Loan to the related Mortgagor. No advance of funds has
been made by the Mortgage Loan Seller , any affiliate or any
third party originator to the related Mortgagor and no funds
have been received from or on behalf of any person other than
the related Mortgagor for, or on account of, payments due on
the Mortgage Loan.
(xviii) No Negative Amortization. Other than the ARD Loans, which may
have negative amortization from and after their respective
Anticipated Repayment Dates, no Mortgage Loan provides for a
shared appreciation or equity participation feature, any other
contingent or additional interest feature or the negative
amortization of interest.
(xix) Whole Loan. Each Mortgage Loan is a whole loan. Neither
Mortgage Loan Seller nor any affiliate thereof has any
obligation to make any capital contributions to any Mortgagor
under a Mortgage Loan other than contributions made on or prior
to the closing date.
(xx) Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any mortgage loan that is not
included in the Trust.
(xxi) Conditions for Releases of Mortgaged Property. Except in
connection with Mortgage Loans that are cross-collateralized
and certain Mortgage Loans that are secured by more than one
Mortgaged Property, no Mortgage Loan allows the Mortgage Loan
Seller to release any portion of the related Mortgaged Property
from the lien of the related Mortgage except upon (A) payment
in full of all amounts due under the related Mortgage Loan, (B)
releases of unimproved out-parcels, (C) releases of portions of
the Mortgaged Property that will not have a material adverse
effect on the adequacy of the remaining collateral for the
related Mortgage Loan or (D) substitution of government
securities for such Mortgaged
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Property in a defeasance complying with Treasury Regulations
ss.1.860G-2(a)(8).
(xxii) Documents Valid. Each related Mortgage Note, Mortgage,
Assignment of Leases (if any) and other agreement executed in
connection with each Mortgage Loan is the legal, valid and
binding obligation of the related Mortgagor, enforceable in
accordance with its terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, receivership,
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).
(xxiii) Assignments of Leases Create First Priority Security Interest.
Unless the related Mortgaged Property is owner occupied, the
Mortgage File for such Mortgage Loan contains an Assignment of
Leases, either as a separate instrument or incorporated into
the related Mortgage, which creates in favor of the holder
thereof a valid, collateral or first priority assignment of, or
a valid first priority security interest in, certain rights
under the related leases, subject only to a license granted to
the related Mortgagor to exercise certain rights and to perform
certain obligations of the lessor under such leases, including
the right to operate the related Mortgaged Property. Each
related assignment of Mortgage from the Mortgage Loan Seller to
the Trustee and any related reassignment of Assignment of
Leases, if any, or assignment of any other agreement executed
in connection with each Mortgage Loan, from the Mortgage Loan
Seller to the Purchaser (or the Trustee as its assignee)
constitutes the legal, valid, binding and enforceable
assignment from the Mortgage Loan Seller to the Purchaser (or
Trustee as its assignee) except as such enforcement may be
limited by bankruptcy, insolvency, receivership,
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).
(xxiv) Mortgages and Security Agreements Create First Lien. Each
Mortgage is a valid and enforceable first lien on the related
Mortgaged Property subject only to (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
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current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the related
Mortgagor's ability to pay its obligations when they become
due or the value of the Mortgaged Property and (C) the
exclusions and exceptions (general and specific) set forth in
a lender's title insurance policy, none of which,
individually or in the aggregate, materially interferes with
the current use of the related Mortgaged Property or
materially interferes with the security intended to be
provided by such Mortgage or with the related Mortgagor's
ability to pay its obligations when they become due or the
value of the Mortgaged Property. As of the date of
origination of such Mortgage Loan and as of the Closing Date,
such Mortgaged Property is free and clear of any mechanics'
and materialmen's liens which are prior to or equal with the
lien of the related Mortgage, except those which are insured
against by a lender's title insurance policy or are referred
to in the preceding sentence. Any Security Agreement, chattel
mortgage or equivalent document related to and delivered in
connection with the Mortgage Loan establishes and creates a
valid and enforceable first lien on and first priority
security interest in the personal property described therein
(including hotel revenues with respect to a Mortgaged
Property that is operated as a hotel), except as such
enforcement may be limited by bankruptcy, insolvency,
receivership, 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).
(xxv) No Defenses to Payment. The Mortgage Loan is not subject to
any right of rescission, set-off, abatement, diminution,
valid counterclaim or defense, including the defense of
usury, available to the related Mortgagor with respect to
such Mortgage Note, Mortgage, Assignment of Leases and other
agreements with respect to any excess interest on an ARD Loan
after the related Anticipated Repayment Date and any default
interest, late charges, prepayment premiums, yield
maintenance charges.
(xxvi) Mortgage Loan Documents Comply With Law. The terms of each of
the Mortgage Loan Documents comply in all material respects
with all requirements of applicable local, state or federal
law.
(xxvii) Customary Provisions. Each related Mortgage contains
customary and enforceable (subject to bankruptcy, insolvency,
moratorium, redemption or other similar laws affecting
creditors' rights generally or by general principles of
equity) provisions so 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, and there is no exemption available to the
Mortgagor which would interfere with such right to foreclose
(except as may be imposed by bankruptcy, insolvency,
moratorium, redemption or other similar laws affecting
creditors' rights generally or by general principles of
equity).
(xxviii) Mortgagor's Interest in Mortgaged Property. The interest of
the related Mortgagor in the related Mortgaged Property
consists of a fee simple estate or a leasehold estate in all
of the real property constituting a part of the Mortgaged
Property.
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(xxix) Recorded Instruments. Both the Mortgage and the assignment of
Mortgage for each Mortgage Loan have been properly recorded
in the applicable jurisdiction and constitute the legal,
valid and binding assignment of such Mortgage Loan. Except as
set forth in Exhibit D attached hereto, the full amount of
the Mortgage has been recorded on each related Mortgaged
Property, and all applicable mortgage recording taxes have
been paid.
(xxx) UCC Financing Statements. A Form UCC-1 financing statement
has been submitted for filing or recordation with respect to
personal property constituting a part of the related
Mortgaged Property as to which a security interest can be
perfected by filing (including hotel revenues with respect to
a Mortgaged Property that is operated as a hotel), and a copy
of each Form UCC-2 or UCC-3 assignment, if any, of such
financing statement executed by the Mortgage Loan Seller in
blank which the Trustee or its designee is authorized to
complete (and but for the insertion of the name of the
assignee and any related filing information which is not yet
available to the Mortgage Loan Seller is in suitable form for
filing) and to file in the filing office in which such
financing statement was filed
(xxxi) Collateral. The Mortgage Note is not and has not been secured
by any collateral other than collateral covered by the
related Mortgage, the related Assignment of Leases (if any)
and any other agreement executed in connection with the
origination of the Mortgage Loan.
(xxxii) Borrower's Licenses and Permits. As of the date of
origination of each Mortgage Loan, and, to the Mortgage Loan
Seller's knowledge, as of the Cut-off Date, each related
Mortgagor was in possession of all material licenses, permits
and other authorizations necessary and required by all
applicable laws for the conduct of its business and all such
licenses, permits and authorizations were valid and in full
force and effect.
(xxxiii) No Usury Violation. The Mortgage Rate (exclusive of any
excess interest on an ARD Loan after the related Anticipated
Repayment Date and any Default Interest, late charges,
Prepayment Premiums and Yield Maintenance Charges) of each
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; and any and all
other requirements of any federal, state or local laws,
including, without limitation, truth-in-lending, real estate
settlement procedures, equal credit opportunity or disclosure
laws, applicable to each Mortgage Loan have been complied
with as of the date of origination of each Mortgage Loan.
(xxxiv) Acceleration Provisions. 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
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Property, or any controlling interest therein, is directly or
indirectly transferred or sold (other than transfers for
estate planning purposes and other purposes where no change
of control occurs) or encumbered in connection with
subordinate financing (other than any indebtedness described
in clauses (xiv) and (xv) above) and each related Mortgage or
loan agreement prohibits the pledge or encumbrance of the
Mortgaged Property without the consent of the holder of the
Mortgage Loan.
(xxxv) Non-Recourse Mortgage Loan. The Mortgage Loan Documents for
each Mortgage Loan provide that such Mortgage Loan is
non-recourse to the related parties thereto except for
certain acts including fraud, willful misconduct or material
misrepresentation by the related Mortgagor and/or its
affiliates, in which case either (A) such Mortgage Loan shall
become a recourse obligation of the Mortgagor or another
person or (B) the Mortgagor or another person shall assume
personal liability for any losses incurred by the Mortgage
Loan Seller or its assignee due to such acts. Additionally,
the Mortgage Loan Documents for each Mortgage Loan provide
that the related Mortgagor or another person thereunder shall
be liable to the related Mortgage Loan Seller for any losses
incurred by the Mortgage Loan Seller due to (1) the
misapplication or misappropriation of rents, insurance
proceeds or condemnation awards, (2) acts of waste and (3)
breaches of any environmental covenants contained in the
related Mortgage Loan Documents.
(xxxvi) Mortgages Secured by Deeds of Trust. To the knowledge of the
Mortgage Loan Seller, with respect to each Mortgage which is
a deed of trust, a trustee, duly qualified under applicable
law to serve as such, has been properly designated and
currently so serves and is named in the deed of trust or has
been substituted in accordance with applicable law, and
except in connection with a trustee's sale after a default by
the related Mortgagor (following demand on the related IDOT
Guaranty if applicable) or in connection with the release of
the related Mortgaged Property, no fees are or will become
payable to such trustee.
(xxxvii) Escrows. All amounts required to have been deposited by each
Mortgagor under the Mortgage Loan Documents have been
deposited. All of the Mortgage Loan Seller's interest in
these amounts will be conveyed to the trust. All requirements
for escrows are memorialized in one or more written
agreements that are contained within the Mortgage File for
such Mortgage Loan.
(xxxviii) Property Condition. To the Mortgage Loan Seller's knowledge,
based upon a site inspection conducted in connection with the
origination of the Mortgage Loan and a review of the related
engineering report, each related Mortgaged Property is 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; the Mortgage Loan Seller has
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received no actual notice of (A) any proceeding pending for
the total or partial condemnation of such Mortgaged Property
or (B) any damage to such Mortgaged Property that materially
and adversely affects the value of such Mortgaged Property.
(xxxix) No Delinquent Charges. There are no delinquent taxes, ground
rents, insurance premiums or assessments (including, without
limitation, assessments payable in future installments or
other similar outstanding charges, water charges or sewer
rents) affecting any Mortgaged Property or such amounts, if
existing and in dispute, have been escrowed or covered by a
letter of credit. For purposes of this representation, an
obligation shall become "delinquent" on the date on which
both of the following conditions are satisfied: (A) interest
and/or penalties are due with respect to the unpaid amount
and (B) enforcement action can be taken by the related taxing
authorities.
(xl) No Encroachments. All improvements included in any MAI
appraisals are within the boundaries of the related Mortgaged
Property, with the exception of de minimis encroachments, and
the Mortgage Loan Seller has obtained title insurance
insuring against any losses arising from such de minimis
encroachments. No improvements on adjoining properties
encroach upon any Mortgaged Property except for de minimis
encroachments or encroachments as to which the Mortgage Loan
Seller has obtained title insurance coverage insuring against
losses arising from such encroachments.
(xli) Mortgaged Property Compliance with Zoning Laws Etc. The
improvements located on or forming part of each Mortgaged
Property materially comply with applicable zoning and
building laws, ordinances and regulations, or constitute a
legal non-conforming use or structure or, if any such
improvement does not so comply, such non-compliance does not
materially and adversely affect the value of the related
Mortgaged Property.
(xlii) Permanent Financing. The Mortgage Loan was not originated for
the purpose of financing the construction of uncompleted
improvements on the related Mortgaged Property.
(xliii) Property Inspections. The Mortgage Loan Seller has inspected
or caused to be inspected each related Mortgaged Property
within the past twelve months.
(xliv) Access. Each Mortgaged Property is located on or adjacent to
a dedicated road, or has access to an irrevocable easement
permitting ingress and egress, is served by public utilities
and services generally available in the surrounding community
and otherwise appropriate for the use in which the
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Mortgaged Property is currently being utilized, and is a
separate tax parcel.
(xlv) First Priority Lien Insured. The lien of each related
Mortgage is a first priority lien on the fee or leasehold
interest of the related Mortgagor in the original principal
amount of the related Mortgage Loan or allocated loan amount
of the portions of the Mortgaged Property covered thereby (as
set forth in the related Mortgage) and is insured by an ALTA
lender's title insurance policy or its equivalent (or a
binding commitment therefor), insuring the Mortgage Loan
Seller, its successors and assigns in the original principal
amount of the Mortgage Loan after all advances of principal
have been paid, subject only to (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 the value of the
Mortgaged Property and (C) the exclusions and exceptions
(general and specific) set forth in such policy, none of
which, individually or in the aggregate, materially
interferes with the current use of the Mortgaged Property or
materially interferes with the security intended to be
provided by such Mortgage or with the related Mortgagor's
ability to pay its obligations when they become due or the
value of the Mortgaged Property. The premium for such policy
was paid in full; such policy was issued by a title insurance
company licensed to issue policies in the state in which the
related Mortgaged Property is located and is assignable to
the Purchaser and the Trustee without the consent of or any
notification to the insurer, and is in full force and effect
upon the consummation of the transactions contemplated by
this Agreement; no claims have been made under such policy
and the Mortgage Loan Seller has not undertaken any action or
omitted to take any action, and has no knowledge of any such
act or omission, which would impair or diminish the coverage
of such policy.
(xlvi) Environmental Matters. A Phase I environmental report and
with respect to certain Mortgage Loans, a Phase II
environmental report, was conducted by a reputable
environmental engineer in connection with such Mortgage Loan,
which report did not indicate any material non-compliance or
material existence of hazardous material or, if any material
non-compliance or material existence of hazardous materials
was indicated in any such report, the remedial action
recommended to be taken in the report has been taken, or
funds sufficient to cover any recommended remedial action
have been escrowed by the related Mortgagor and held by the
Mortgage Loan Seller under the related Mortgage or the Tenant
under a Credit Tenant Loan has the obligation to remedy such
condition or circumstance. To the best of the Mortgage Loan
Seller's knowledge, in
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reliance on such environmental reports, each Mortgaged
Property is in material compliance with all applicable
federal, state and local laws pertaining to environmental
hazards other than as disclosed in such environmental
reports, and to the best of the Mortgage Loan Seller's
knowledge, no notice of violation of such laws has been
issued by any governmental agency or authority, except as
indicated in certain environmental reports or other documents
previously provided to the Rating Agencies; the Mortgage Loan
Seller has not taken any action which would cause the
Mortgaged Property not to be in compliance with all federal,
state and local laws pertaining to environmental hazards.
Each Mortgagor represents and warrants in the related
Mortgage Loan Documents that except as set forth in certain
environmental reports and to the best of its knowledge it has
not used, caused or permitted to exist and will not use,
cause or permit to exist on the related Mortgaged Property
any hazardous materials in any manner which violates federal,
state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production
or disposal of hazardous materials. Each Mortgagor (or an
affiliate thereof) has agreed to indemnify, defend and hold
the Mortgage Loan Seller and its successors and assigns
harmless from and against any and all losses, liabilities,
damages, injuries, penalties, fines, expenses, and claims of
any kind whatsoever (including attorney's fees and costs)
paid, incurred or suffered by, or asserted against, any such
party resulting from a breach of environmental
representations, warranties or covenants given by the
Mortgagor in connection with such Mortgage Loan.
(xlvii) Additional Insurance. Each Mortgage Loan requires that the
Mortgaged Property be covered by the following insurance
policies naming the Mortgagee and its successors and assigns
as additional insured, in an amount at least equal to the
lesser of the value of the replacement cost of the related
Mortgaged Property or the principal balance of the related
Mortgage Loan, and sufficient to avoid the operation of any
co-insurance provisions: (A) fire and extended perils
(included within the classification "All Risk of Physical
Loss"), (B) 12 months of business interruption or rental loss
insurance, (C) flood insurance if, based solely on a flood
zone certification or a survey of the related Mortgaged
Property, the property improvements are located in a 100-year
flood plain, or if any portion of the improvements on the
Mortgaged Property is located in a federally designated flood
area "A" and (D) comprehensive general liability insurance in
amounts generally required by institutional lenders for
similar properties. All premiums on such insurance policies
required to be paid as of the Cut-off Date have been paid;
such insurance policies may not be terminated or cancelled
without 30 days prior written notice to the insured (for
defaults other than non-payment, for which there is a minimum
of 10 days written notice of cancellation) and no such notice
has been received by the insured. Except as set forth in
Exhibit D, the insurance provider of
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each such insurance policy has an A.M. Best's rating of at
least "A:X" or a claims paying ability rating of at least "A"
by Standard & Poor's or its equivalent. Other than the Credit
Tenant Loans, each related Mortgage Loan obligates the
related Mortgagor to maintain all such insurance and, at such
Mortgagor's failure to do so, authorizes the mortgagee to
maintain such insurance at the Mortgagor's cost and expense
and to seek reimbursement therefor from such Mortgagor.
(xlviii) Application of Insurance and Condemnation Proceeds. Subject
to Clause (liv)(K) with respect to ground lease property, any
insurance proceeds in respect of a casualty loss or taking,
will be applied either to (A) the repair or restoration of
all or part of the related Mortgaged Property or (B) to the
payment of the outstanding principal balance of such Mortgage
Loan together with any accrued interest thereon, except that
in the case of a ground-leased property casualty and
condemnation proceeds are required to be paid first to the
owner of the fee interest in the related property in
accordance with terms of the related ground lease and then in
accordance with the related Mortgage.
(xlix) Terms of Mortgage. The Mortgage Loan is directly secured by a
Mortgage on a commercial, industrial, self-storage,
hospitality, mobile home park or multifamily residential
property, and either (A) substantially all of the proceeds of
the Mortgage Loan were used to acquire, improve or protect an
interest in such real property which, as of the origination
date, was the sole security for such Mortgage Loan (unless
the Mortgage Loan has been modified in a manner that
constituted a deemed exchange under Section 1001 of the Code
at a time when the Mortgage Loan was not in default or
default with respect thereto was not reasonably foreseeable)
or (B) the fair market value of such real property was at
least equal to 80% of the principal amount of the Mortgage
Loan (1) at origination (or if the Mortgage Loan has been
modified in a manner that constituted a deemed exchange under
Section 1001 of the Code at a time when the Mortgage Loan was
not in default or default with respect thereto was not
reasonably foreseeable, the date of the last such
modification) or (2) at the Closing Date; provided that the
fair market value of the real property interest must first be
reduced by (I) the amount of any lien on the real property
interest that is senior to the Mortgage Loan (unless such
senior lien also secures a Mortgage Loan, in which event the
computation described in clauses (1) and (2) shall be made on
an aggregate basis) and (II) a proportionate amount of any
lien that is in parity with the Mortgage Loan (unless such
other lien secures a Mortgage Loan that is
cross-collateralized with such Mortgage Loan, in which event
the computation described in clauses (B)(1) and (B)(2) shall
be made on an aggregate basis.
(l) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property, which appraisal is signed by a
qualified appraiser, who, to the best of the Mortgage Loan
Seller's knowledge, had no interest,
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direct or indirect, in the Mortgaged Property or the
Mortgagor or in any loan made on the security thereof, and
whose compensation is not affected by the approval or
disapproval of the Mortgage Loan; the appraisal and appraiser
both satisfy the requirements of the "Uniform Standards of
Professional Appraisal Practice" as adopted by the Appraisal
Standards Board of the Appraisal Foundation, all as in effect
on the date the Mortgage Loan was originated.
(li) Credit Tenant Loans. With respect to each Mortgage Loan which
is identified as a Credit Tenant Loan on Exhibit E attached
hereto:
(A) except as set forth in Exhibit D, the base rental
payments under each Credit Lease are equal to or greater
than the payments due under the Mortgage Loan Documents
executed in connection with the related Credit Tenant
Loan and are payable without notice or demand, and
without setoff, counterclaim, recoupment, abatement,
reduction or defense and, subject to the rights of the
Tenant to terminate the Credit Lease or offset, abate,
suspend or otherwise diminish any amounts payable by the
Tenant under the Credit Lease;
(B) (1) the obligations of the Tenant under each Credit
Lease, including, but not limited to, the obligation of
the Tenant to pay fixed and additional rent, are not
affected by reason of any damage to or destruction of
any portion of the related Credit Tenant Property, any
taking of such Credit Tenant Property or any part
thereof, by condemnation or otherwise or any
prohibition, limitation, interruption, cessation,
restriction, prevention or interference of the Tenant's
use, occupancy or enjoyment of such Credit Tenant
Property, (2) with respect to each Credit Lease listed
on Schedule I hereto, a Lease Enhancement Policy has
been obtained or (3) with respect to condemnation, the
Tenant is required to make a rejectable purchase offer
for a purchase price that is greater than the then
outstanding principal balance secured by the Mortgage;
(C) except as set forth in Exhibit D, every obligation
associated with managing, owning, developing and
operating the Credit Tenant Property, including, but not
limited to, the costs associated with utilities, taxes,
insurance, capital and structural improvements,
maintenance and repairs is an obligation of the Tenant;
(D) except as set forth in Exhibit D, no Mortgagor has any
monetary obligations under any Credit Lease that have
not been met, or any material nonmonetary obligations
under any Credit Lease the breach of which would result
in either the abatement of rent, a right of setoff or
the termination of the related Credit Lease;
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(E) no Tenant can terminate any Credit Lease for any reason
(except for a default by the related Mortgagor under the
Credit Lease) prior to the payment in full of (1) the
principal balance of the related Credit Tenant Loan, (2)
all accrued and unpaid interest on such Credit Tenant
Loan and (3) any other sums due and payable under such
Credit Tenant Loan or, if a Tenant can terminate any
Credit Lease as a result of a casualty or condemnation,
a Lease Enhancement Policy has been obtained; or if a
Tenant can terminate the Credit Lease with respect to a
condemnation, the Tenant must make a rejectable purchase
offer for a purchase price that is greater than the then
outstanding principal balance secured by the Mortgage;
(F) if a Tenant assigns its Credit Lease or sublets the
related Credit Tenant Property, such Tenant remains
primarily obligated under such Credit Lease;
(G) each Tenant has agreed to indemnify the related landlord
from any claims of any nature (1) to which such landlord
is subject because of landlord's estate in the leased
property or (2) arising from (I) injury to or death of
any person or damage to or loss of property on the
related Credit Tenant Property or connected with the
use, condition or occupancy of such Credit Tenant
Property, (II) Tenant's violation of the related Credit
Lease, (III) any act or omission of Tenant or (IV) any
environmental or hazardous material affecting the
related property created by the Tenant;
(H) if the obligations of the Tenant under any Credit Lease
are guaranteed by a guarantor pursuant to a guaranty,
the guaranty states that it represents the unconditional
obligation of the guarantor and is a guarantee of
payment, not merely of collection;
(I) to the Mortgage Loan Seller's knowledge, each Credit
Lease contains customary and enforceable provisions
which render the rights and remedies of the lessor
thereunder adequate for the enforcement and satisfaction
of the lessor's rights thereunder;
(J) to the Mortgage Loan Seller's knowledge, in reliance on
a Tenant estoppel certificate and representations made
by the Tenant under the Credit Lease or representations
made by the related Mortgagor under the Mortgage Loan
Documents, as of the date of origination of each Credit
Tenant Loan (1) each Credit Lease was in full force and
effect, and no default by the related Mortgagor or any
Tenant has occurred under the Credit Lease, nor is there
any existing condition which, but for the passage of
time or the giving of notice, or both, would result in a
default under the terms of the Credit Lease, (2) none of
the terms of the related Credit Lease have been
impaired, waived, altered or modified in any respect
(except as described in the related Tenant
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estoppel), (3) no Tenant has been released, in whole or
in part, from its obligations under the related Credit
Lease, (4) there is no right of rescission, offset,
abatement, diminution, defense or counterclaim to any
Credit Lease, nor will the operation of any of the terms
of any Credit Lease, or the exercise of any rights
thereunder, render the Credit Lease unenforceable in
whole or in part, or subject it to any right of
rescission, offset, abatement, diminution, defense or
counterclaim and no such right of rescission, offset,
abatement, diminution, defense or counterclaim has been
asserted with respect thereto and (5) each Credit Lease
has a term ending on or after the Maturity Date (or
Anticipated Repayment Date) of the related Credit Tenant
Loan;
(K) except as set forth in Exhibit D, to the Mortgage Loan
Seller's knowledge, the related Credit Tenant Property
is not subject to any lease other than the related
Credit Lease, no Person has any possessory interest in,
or right to occupy, such Credit Tenant Property except
under and pursuant to such Credit Lease, and the related
Credit Tenant or an affiliate is in occupancy of such
Credit Tenant Property;
(L) the Mortgage Loan Seller is entitled to notice of any
event of default from the Tenant under a Credit Lease;
(M) each Tenant under a Credit Lease is required to make all
rental payments directly to the Mortgage Loan Seller,
its successors and assignees under the related Credit
Tenant Loan;
(N) each Credit Tenant Loan provides that the related Credit
Lease cannot be modified without the consent of the
holder of the Mortgage Loan thereunder;
(O) except as set forth in Exhibit D, either (1) each Credit
Tenant Loan fully amortizes over its original term and
there is no "balloon" payment due under the Credit
Tenant Loan or (2) a Residual Value Policy has been
obtained with respect to such Credit Tenant Loan;
(P) the related Credit Tenant Property has a permanent
certificate of occupancy (or its equivalent in
jurisdictions that do not provide for the issuance of
certificates of occupancy) and the Tenant has commenced
making lease payments.
(Q) each Tenant has delivered an estoppel verifying the
rents and terms of the related lease, acknowledging that
no rent has been paid in advance, and an estoppel and/or
a subordination and nondisturbance agreement agreeing to
attorn to the holder of the Mortgage Loan.
(lii) Residual Value and Lease Enhancement Insurance Policy With
Respect to Credit Tenant Loans. With respect to any Credit
Tenant Loan for which a
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Residual Value Policy or a Lease Enhancement Policy
(collectively, the "Policies") has been obtained, and which
are identified on Exhibit D attached hereto:
(A) Each Credit Tenant Loan in connection with which the
related Credit Lease may be terminated upon the
occurrence of a casualty or condemnation has a
noncancellable Lease Enhancement Policy from Chubb
Custom Insurance Company ("Chubb") or Lexington
Insurance Company ("Lexington"). The Chubb Lease
Enhancement Policy in effect for each related Credit
Tenant Loan is the "7/98" version. The Lexington Lease
Enhancement Policy in effect for each related Credit
Tenant Loan was issued in 1998 and the policy number is
63241 (11-95).
(B) Each Credit Tenant Loan in connection with which the
related Credit Lease will have a balloon payment due at
maturity has a non-cancellable Residual Value Policy
from R.V.I. American Insurance Company ("RVI") or
Financial Structures Limited ("FSL"). The RVI Residual
Value Policy in effect for each related Credit Tenant
Loan is the "Single 1.1" policy and the FSL Residual
Value Policy in effect for each related Credit Tenant
Loan was issued in 1998.
(C) The Trustee and its assigns are designated as the loss
payee under each related Policy. All claims proceeds are
payable to the loss payee.
(D) Payment under each Policy will be made at least within
15 days of notification of a claim.
(E) The premium for each Policy has been paid in full as of
the Policy effective date for the related Policy and the
Policy cannot be terminated prior to the termination
date.
(F) The effective date for each Policy with respect to each
Credit Tenant Loan is on or prior to the Closing Date.
(G) The termination date for each Policy with respect to
each Credit Tenant Loan is the date upon which the
outstanding principal balance of the Credit Tenant Loan
is reduced to zero.
(H) The insured amount for each such Policy is what the
applicable provider will pay to the loss payee upon
notification of a claim and is at least equal to the
outstanding principal balance of the related Mortgage
Note at the time the claim is made plus all accrued
interest.
(I) The Policy cannot be amended without the prior written
consent of the Trustee.
(liii) ARD Loans. If such Mortgage Loan is an ARD Loan it provides
that:
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(A) its Mortgage Rate will increase by no more than two
percentage points from and after its Anticipated
Repayment Date;
(B) its Anticipated Repayment Date is not less than seven
years following the origination of such Mortgage Loan;
(C) (1) on the Closing Date, each ARD Loan will have a
lockbox in place, and (2) each related Mortgagor has
entered into a "lockbox agreement" whereby all revenue
from the related Mortgaged Property shall be deposited
directly into a designated account controlled by the
Servicer;
(D) any cash flow from the related Mortgaged Property that
is applied to amortize an ARD Loan following its
Anticipated Repayment Date shall, to the extent such net
cash flow is in excess of the monthly payment payable
therefrom, be net of budgeted capital expenditures and
capital expenditures that may be approved by the
Servicer in accordance with the terms of the Pooling and
Servicing Agreement.
(E) each ARD Loan is being amortized as of the Cut-off Date,
and is not currently subject to an interest-only period;
(F) the holder of each ARD Loan may not exercise default
remedies if Mortgagor pays scheduled principal and
interest (at the related Mortgage Rate);
(G) The property manager cannot be removed for the sole
reason that the ARD Loan continues to be outstanding
after its Anticipated Repayment Date.
(liv) Ground Leases. With respect to any Mortgage Loan where all
or a material portion of the estate of the related Mortgagor
therein is a leasehold estate, based upon the terms of the
ground lease and any estoppel received from the ground
lessor, the Mortgage Loan Seller represents and warrants
that:
(A) The ground lease or a memorandum regarding such ground
lease has been duly recorded. The ground lease permits
the interest of the lessee to be encumbered by the
related Mortgage and does not restrict the use of the
related Mortgaged Property by such lessee or its
successors or assigns in a manner that would adversely
affect the security provided by the related Mortgage. To
the Mortgage Loan Seller's knowledge, there has been no
material change in the terms of the ground lease since
its recordation, except by any written instruments which
are included in the related Mortgage File;
(B) The lessor under such ground lease has agreed in a
writing included in the related Mortgage File that the
ground lease may not be amended, modified, canceled or
terminated without the prior written consent of
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the Mortgage Loan Seller and its successors and assigns
unless the holder of the Mortgage Loan fails to cure a
Mortgagor ground lease default after applicable notice
and cure periods;
(C) The ground lease has an original term (or an original
term plus one or more optional renewal terms, which,
under all circumstances, may be exercised, and will be
enforceable, by the Mortgage Loan Seller) that extends
not less than 10 years beyond the Maturity Date (or
Anticipated Repayment Date) of the related Mortgage
Loan;
(D) Based on the title insurance policy (or binding
commitment therefor) obtained by the Mortgage Loan
Seller, the ground lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the
lien of the Mortgage (other than any indebtedness
described in clauses (xiv), (xv) and (xxiv) above and
liens that encumber the ground lessor's fee interest);
(E) The ground lease is assignable to the Mortgage Loan
Seller and its successors and assigns under the related
leasehold estate without the consent of the lessor
thereunder , and in the event that such ground lease is
so assigned, it is further assignable by the Depositor
and its successors and assigns upon notice to, but
without a need to obtain the consent of the lessor;
(F) As of the closing date of the related Mortgage Loan, the
ground lease is in full force and effect, the Mortgage
Loan Seller has received no notice that any default
beyond applicable notice and grace periods has occurred,
and there is no existing condition which, but for the
passage of time or giving of notice, would result in a
default under the terms of the ground lease;
(G) 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 Mortgage Loan Seller
or its assignee and pursuant to such agreement, no
notice given thereunder is effective against the
Mortgage Loan Seller unless a copy has been given to the
Mortgage Loan Seller in the manner prescribed in the
ground lease or ancillary agreement;
(H) A Mortgage Loan Seller or its assignee is permitted a
reasonable opportunity (including, where necessary,
sufficient time to gain possession of the interest of
the lessee under the ground lease through legal
proceedings, or to take other action so long as the
Mortgage Loan Seller or its assignee is proceeding
diligently) to cure any default under the ground lease
which is curable after the receipt of notice of any
default before the lessor may terminate the ground
lease.
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(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially
unreasonable by an institutional investor. The lessor is
not permitted to disturb the possession, interest or
quiet enjoyment of any subtenant of the lessee in the
relevant portion of the Mortgaged Property subject to
the ground lease for any reason, or in any manner, which
would materially and adversely affect the security
provided by the related Mortgage;
(J) Under the terms of the ground lease and the related
Mortgage, 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 Mortgage Loan Seller 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 that in the case of
condemnation awards, the ground lessor may be entitled
to a portion of such award;
(K) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds, or
condemnation award in respect of a total or
substantially total loss or taking to the related
Mortgaged Property will be applied first to the payment
of the outstanding principal balance of the Mortgage
Loan, together with any accrued interest (except as
provided by applicable law or 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). Until the
principal balance and accrued interest are paid in full,
neither the lessee nor the lessor under the ground lease
will have an option to terminate or modify the ground
lease without the prior written consent of the Mortgage
Loan Seller or its assignee as a result of any casualty
loss or partial condemnation, except to provide for an
abatement of the rent or otherwise in accordance with
the standard provisions of the related Mortgage;
(L) Provided that the Mortgage Loan Seller cures any
defaults which are susceptible of being cured, the
lessor has agreed to enter into a new lease with the
Mortgage Loan Seller upon termination of the ground
lease for any reason, including rejection of the ground
lease in a bankruptcy proceeding.
(lv) Bondable Leases. With respect to each Credit Tenant Loan
identified on Exhibit E as being secured by a Mortgaged
Property with one or more Bondable Leases (which are
identified in Exhibit E attached hereto) each Bondable Lease
is subject to the following conditions:
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(A) The rental payments under the related Bondable Lease are
equal to or greater than the payments due under the
related Mortgage Note and Mortgage, and are payable
without notice or demand, and without setoff,
counterclaim recoupment, abatement, reduction or
defense.
(B) There is no right of rescission, offset, abatement,
diminution, defense or counterclaim to any Bondable
Lease, in whole or in part, and no such right of
rescission, offset, abatement, diminution, defense or
counterclaim has been asserted with respect thereto;
(C) The obligations of the Tenant under the related Bondable
Lease, including, but not limited to, the obligation of
the Tenant to pay fixed and additional rent, are not
affected by reason of: (w) any damage to or destruction
of any portion of the related Credit Tenant Property;
(x) taking of the related Credit Tenant Property or any
part thereof by condemnation or otherwise; (y) any
prohibition, limitation, interruption, cessation,
restriction, prevention or interference of the Tenant's
use, occupancy or enjoyment of the related Credit Tenant
Property or (z) with respect to condemnation, the Tenant
is required to make a rejectable purchase offer for a
purchase price that is greater than the outstanding
principal balance of the Mortgage Loan.
(D) The landlord does not have any monetary obligations
under the related Bondable Lease, and every monetary
obligation associated with the managing, owning,
developing and operating the related Credit Tenant
Property, including, but not limited to, the costs
associated with utilities, taxes, insurance, maintenance
and repairs is an obligation of the Tenant.
(E) The landlord does not have nonmonetary obligation sunder
the related lease, except for the delivery of possession
of the related leased property.
(F) The landlord has not made any representation or warranty
under the related lease that would impose any monetary
obligation upon the landlord or result in the
termination of the related lease.
(G) The Tenant cannot terminate the related Bondable Lease
for any reason other than condemnation of the related
Mortgaged Property, prior to the payment in full of:
(1) The principal balance of the Mortgage Loan;
(2) All accrued and unpaid interest on the Mortgage
Loan; and
(3) Any other sums due and payable under the Mortgage
Loan, as of termination date, which date is a rent
payment date, except for a default by the landlord
under the related lease.
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(H) The Tenant has agreed to indemnify the landlord from any
claims of any nature:
(1) To which the landlord is subject because of the
landlord's estate in the related Credit Tenant
Property, or
(2) Arising from
(I) Injury to or death of any person or damage to
or loss of property on the related leased
property or connected with the use, condition
or occupancy o the related leased property,
(II) The Tenant's violation of the related lease,
(III) Any act or omission of the Tenant or
(IV) Any environmental or hazardous material
affecting the related property.
(lvi) Mortgage Loans Not Originated by Mortgage Loan Seller. With
respect to each Mortgage Loan originated by a correspondent
of the Mortgage Loan Seller and purchased or "table funded"
by the Mortgage Loan Seller in connection with a
correspondent relationship with such originator, except as
set forth on Exhibit D attached hereto:
(A) such Mortgage Loan was underwritten substantially in
accordance with standards established by the Mortgage
Loan Seller, (which standards are in all material
respects the same as the underwriting standards for
Mortgage Loans originated by the Mortgage Loan Seller);
(B) such Mortgage Loan was originated pursuant to an
ongoing, standing relationship with the Mortgage Loan
Seller;
(C) the closing documents (which include assignment
documents executed by the Mortgage Loan originator in
favor of the Mortgage Loan Seller at the time of the
closing of the Mortgage Loan) for the Mortgage Loan were
prepared in substantial compliance with forms approved
by the Mortgage Loan Seller, and reflect the Mortgage
Loan Seller as the successor and assign to the Mortgage
Loan originator; and
(D) such Mortgage Loan either was actually funded by and
assigned to the Mortgage Loan Seller at the closing
thereof, or was funded initially by the Mortgage Loan
originator at the closing thereof and then acquired by
the Mortgage Loan Seller from such Mortgage Loan
originator pursuant to its ongoing, standing
relationship with the Mortgage Loan Seller.
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(lvii) Origination. Each Mortgage Loan originated by the Mortgage
Loan Seller was underwritten consistent in all material
respects with the standards of the Mortgage Loan Seller as
then in effect and each Mortgage Loan purchased by the
Mortgage Loan Seller from a third-party originator was
underwritten consistent in all material respects with
prudent commercial mortgage conduit lending standards.
(lviii) Waivers. The Mortgage Loan Seller and, to the Mortgage Loan
Seller's knowledge, any prior holder of the Mortgage Loan
has not waived any default, breach, violation or event of
acceleration under the related Mortgage or Mortgage Note.
(lix) Qualification. To the extent required under applicable law
as of the Closing Date and necessary for the enforceability
or collectibility of the Mortgage Loan, the originator of
such Mortgage Loan was authorized to do business in the
jurisdiction in which the related Mortgaged Property is
located at all times when it held the Mortgage Loan.
3.3. Remedies for Breach of Certain Representations and Warranties. (a)
It is understood and agreed that the representations and warranties set forth
herein shall survive the sale of the Mortgage Loans to the Purchaser,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement or the Pooling and
Servicing Agreement, and shall inure to the benefit of the Purchaser, and the
Trustee as the transferee of the Purchaser, notwithstanding (1) any restrictive
or qualified endorsement on any Mortgage Note, assignment of Mortgage,
Assignment of Leases, Rents and Profits or reassignments thereof (2) any
termination of this Agreement or (3) the examination by any Person of, or
failure by any Person to examine, any Mortgage File. It is further understood
and agreed that the representations and warranties set forth in Section 3.2(b)
do not cover any mortgage loans sold to the Purchaser by any other Person.
(b) Upon the receipt of notice or discovery by the Mortgage Loan
Seller, the Purchaser or the Trustee that (i) a document required to be
delivered, recorded or filed pursuant to Section 2.4 of this Agreement in
connection with any Mortgage Loan has not been executed or received, has not
been recorded or filed (if required), appears not to be what it purports to be
or has been torn, mutilated or otherwise defaced prior to the delivery thereof
(such Mortgage Loan, a "Defective Document Mortgage Loan") or (ii) a breach of
any of the foregoing representations and warranties (other than the
representations and warranties set forth in Sections 3.1(a) and 3.2(a)) (a
"Breach") which, in the case of either clause (i) or (ii), materially and
adversely affects the value of any Mortgage Loan or the interests of the
Certificateholders therein, the party discovering (x) that a Mortgage Loan is a
Defective Document Mortgage Loan or (y) the existence of a Breach (any such
Mortgage Loan as described in the preceding clause (x) or so affected by a
Breach as described in clause (y), a "Defective Mortgage Loan") shall give
prompt written notice thereof to the other parties. Within 90 days of the
earlier of its discovery or its receipt of notice of any such Defective Mortgage
Loan, the Mortgage Loan Seller shall at its option either (i) promptly cure such
defect or Breach in all material respects; provided, however, that the Mortgage
Loan Seller will have an additional 90-day period to cure such defect or Breach
if it is diligently proceeding with such cure, and has delivered to the Trustee,
the Servicer
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and each Rating Agency an officer's certificate with all relevant correspondence
and communication in the possession of the Mortgage Loan Seller as of the date
thereof relating to such Defect or Breach that describes the reasons that a cure
was not effected within the first 90-day cure period and the actions it proposes
to take to effect such cure and which states that it anticipates such cure will
be effected within the additional 90-day period or (ii) repurchase each
Defective Mortgage Loan at the Repurchase Price for such Mortgage Loan. The
payment of the Repurchase Price with respect to any Mortgage Loans repurchased
by the Mortgage Loan Seller shall be paid in accordance with the directions of
the owners of such Mortgage Loans. It is understood and agreed that the
obligations of the Mortgage Loan Seller set forth in this Section 3.3(b) to cure
or repurchase a Defective Mortgage Loan constitute the sole remedies available
to the Purchaser and its successors and assigns respecting a Defective Mortgage
Loan. Upon any such repurchase of a Mortgage Loan by the Mortgage Loan Seller,
the Purchaser shall execute and deliver (or shall cause the Trustee to execute
and deliver) such instruments of transfer or assignment presented to it by the
Mortgage Loan Seller, in each case without recourse, as shall be necessary to
vest in the Mortgage Loan Seller the legal and beneficial ownership of such
Mortgage Loan (including any property acquired in respect thereof or proceeds of
any insurance policy with respect thereto) and the related rights under each
agreement which were assigned pursuant to Section 3.7 hereof, and shall deliver
the related Mortgage File to the Mortgage Loan Seller or its designee after
receipt of the related Repurchase Price.
(c) Except as expressly set forth in Section 3.3(b), no provision of
this Agreement shall be interpreted as limiting (or otherwise be deemed to
limit) the Purchaser's right to pursue any remedies it may have under this
Agreement, in equity or at law, in connection with any breach by the Mortgage
Loan Seller of any term hereof.
(d) The Mortgage Loan Seller hereby acknowledges the assignment by the
Purchaser to the Trustee, as trustee under the Pooling and Servicing Agreement,
for the benefit of the Certificateholders, of the representations and warranties
contained herein and of the obligation of the Mortgage Loan Seller to cure or
repurchase Defective Mortgage Loans pursuant to this Section. The Trustee or its
designee may enforce such obligation as provided in Section 5.3 hereof.
(e) The Mortgage Loan Seller hereby acknowledges and agrees that,
pursuant to Section 2.03(e) of the Pooling and Servicing Agreement, the Servicer
and the Special Servicer (in the case of Specially Serviced Mortgage Loans) have
the right, for the benefit of the Certificateholders, to enforce the obligations
of the Mortgage Loan Seller under this Section 3.3. The Servicer and the Special
Servicer, as the case may be, shall be reimbursed for the reasonable costs of
such enforcement from a specific recovery of costs, expenses or attorneys' fees
against the applicable Mortgage Loan Seller first, from a specific recovery of
costs, expenses or attorneys' fees against the Mortgage Loan Seller ordered or
awarded pursuant to an adjudication and second, from the Purchase Price (as
defined in the Pooling and Servicing Agreement) in the manner contemplated by
Section 2.03(e) of the Pooling and Servicing Agreement.
3.4. Opinions of Counsel. The Mortgage Loan Seller hereby covenants to
the Purchaser to, simultaneously with the execution hereof, deliver or cause to
be delivered to the Purchaser (a) opinions of counsel as to various corporate
matters in form satisfactory to the Purchaser (it being agreed that the opinion
shall expressly provide that the Trustee and the Fiscal
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Agent shall be entitled to rely on such opinions); and (b) opinions of counsel
for the Mortgage Loan Seller, in form acceptable to the Purchaser, its counsel,
and each Rating Agency, as to such matters as shall be required for the
assignment of the ratings of the Certificates and otherwise as required by the
Certificate Purchase Agreement and the Underwriting Agreement (it being agreed
that such opinions or appropriate reliance letters shall expressly provide that
the Trustee and the Fiscal Agent shall be entitled to rely on such opinions).
3.5. Underwriting. The Mortgage Loan Seller hereby agrees to furnish
any and all information, documents, certificates, letters or opinions with
respect to the Mortgage Loans reasonably requested by the Purchaser in order to
perform any of its obligations or satisfy any of the conditions on its part to
be performed or satisfied pursuant to the Certificate Purchase Agreement and the
Underwriting Agreement at or prior to the Closing Date.
3.6. Further Assurances; Securitization Cooperation. The Mortgage Loan
Seller agrees to execute and deliver such instruments and take such actions as
the Purchaser may, from time to time, reasonably request in order to effectuate
the purpose and to carry out the terms of this Agreement and to effectuate the
securitization of the Mortgage Loans pursuant to the Pooling and Servicing
Agreement and to carry out its obligations under the Pooling and Servicing
Agreement.
3.7 Assignment of Purchase Agreement. The Mortgage Loan Seller for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby grants, sells, transfers, assigns, delivers, sets-over and
conveys to the Purchaser all the right, title and interest of the Mortgage Loan
Seller in, to and under the Mortgage Loans pursuant to each agreement between
the Mortgage Loan Seller and the originators of the Mortgage Loans (where such
originators are Persons other than the Mortgage Loan Seller) pursuant to which
the Mortgage Loan Seller acquired rights in such Mortgage Loan (which agreements
are set forth on Schedule I attached hereto), including, without limitation, all
of the Mortgage Loan Seller's right, title and interest in any claims, insurance
policies, escrow accounts, demands, causes of action and any other collateral
arising out of and/or executed and/or delivered in or to, together with any
other documents or instruments executed and/or delivered in connection with or
otherwise related to the Mortgage Loans, without recourse, representation or
warranty except as set forth herein.
[End of Article III]
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ARTICLE IV.
CLOSING CONDITIONS
4.1. Purchaser's Conditions to Closing. The obligations of the
Purchaser under this Agreement shall be subject to the satisfaction, on the
Closing Date, or such other date specified herein, of the following conditions:
(a) The obligations of the Mortgage Loan Seller required to be
performed by it at or prior to the Closing Date pursuant to the terms of this
Agreement shall have been duly performed and complied with and all of the
representations and warranties of the Mortgage Loan Seller under this Agreement
shall be true and correct as of the date hereof and as of the Closing Date, and
no event shall have occurred which, with notice or the passage of time, or both,
would constitute a default under this Agreement, and the Purchaser shall have
received a certificate to that effect signed by an authorized officer of the
Mortgage Loan Seller.
(b) The Purchaser or its designee shall have received all of the
following closing documents, in such forms as are agreed upon and acceptable to
the Purchaser and in form and substance satisfactory to the Purchaser, the
Underwriters and their respective counsel, duly executed (except in the case of
(i) and (ii)) by all signatories other than the Purchaser as required pursuant
to the respective terms thereof:
(i) with respect to each Mortgage Loan, the related Mortgage File,
which Mortgage File shall be delivered to and held by the Trustee on behalf
of the Purchaser;
(ii) the final Mortgage Loan Schedule attached hereto as Exhibit A;
(iii) an officer's certificate from the Mortgage Loan Seller dated as
of the Closing Date, in the form attached hereto as Exhibit B;
(iv) an opinion of _______________, counsel to the Mortgage Loan
Seller, substantially in the form attached hereto as Exhibit C;
(v) such other opinions of counsel as the Mortgage Loan Seller, the
Depositor or the Underwriters may require;
(vi) the Merrill Lynch Mortgage Loan Purchase and Sale Agreement duly
executed and delivered;
(vii) such other documents, certificates and opinions as may be
necessary to secure for the Certificates the ratings from Moody's Investors
Services, Inc. ("Moody's") and Fitch IBCA, Inc. ("Fitch IBCA") set forth in
Clause (viii) of this Section 4.1(b);
(viii) Letters from Moody's and Fitch IBCA showing the following
ratings: for the Class A-1 Certificates, a "Aaa" rating from Moody's and a
"AAA" rating from Fitch IBCA; for the Class A-2 Certificates, a "Aaa"
rating from Moody's and a "AAA" rating from Fitch IBCA; for the Class X
Certificates, a "Aaa" rating from Moody's and a "AAA" rating from Fitch
IBCA; for the Class B Certificates, a "Aa2" rating from
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Moody's and a "AA" rating from Fitch IBCA; for the Class C Certificates, a
"A2" rating from Moody's and a "A" rating from Fitch IBCA; for the Class D
Certificates, a "Baa2" rating from Moody's and a "BBB" rating from Fitch
IBCA; for the Class E Certificates, a "Baa3" rating from Moody's and a
"BBB-" rating from Fitch IBCA; for the Class F Certificates, a "Ba2" rating
from Moody's; for the Class G Certificates, a "B2" rating from Moody's; for
the Class H Certificates, a "B3" rating from Moody's.
(ix) a letter from the independent accounting firm of
PriceWaterhouseCoopers, LLC in form satisfactory to the Purchaser, relating
to certain information regarding the Mortgage Loans as set forth in the
Prospectus and the Prospectus Supplement and certain information regarding
the Certificates as set forth in the Prospectus and the Prospectus
Supplement.
4.2. Mortgage Loan Seller's Condition to Closing. The obligations of
the Mortgage Loan Seller under this Agreement shall be subject to the
satisfaction, on the Closing Date, to the Purchaser's compliance with all of the
Purchaser's obligations under this Agreement.
[End of Article IV]
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ARTICLE V.
MISCELLANEOUS
5.1. Costs. (a) The Purchaser shall pay all expenses incidental to the
performance of its obligations under this Agreement, including without
limitation (i) fees for title policy endorsements and continuations or any
recordation expenses for all documents to be recorded, including without
limitation, the assignments of the Mortgages and the assignments of the
Assignments of Leases and any other documentation requested by the Purchaser as
further assurance of the transactions contemplated herein, (ii) the expenses of
preparing, printing and reproducing (A) the Memorandum with respect to the
Privately Placed Certificates and the Prospectus Supplement with respect to the
Publicly Offered Certificates, (B) the Purchase Agreement, (C) the Pooling and
Servicing Agreement and (D) the Certificates, (iii) the cost of delivering the
Privately Placed Certificates to the office of the Placement Agent or the
Purchaser, as applicable, insured to the satisfaction of the Placement Agent or
the Purchaser, as applicable and (iv) the cost of delivering the Publicly
Offered Certificates to the office of the Underwriter.
(b) The Mortgage Loan Seller shall pay or cause to be paid to the
Purchaser its Allocable Share of the Purchaser's out-of-pocket expenses
allocable to the Mortgage Loans, including, but not limited to the Purchaser's
attorneys' fees and expenses.
5.2. Indemnification and Contribution: (a) The Mortgage Loan Seller
shall indemnify and hold harmless the Purchaser, the directors, officers,
employees and agents of the Purchaser, and each person who controls the
Purchaser 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 Prospectus (in preliminary or
final form), or in any amendment thereof or supplement thereto, 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,
in the light of the circumstances under which they were made, not misleading,
but only to the extent such untrue statement, alleged untrue statement, omission
or alleged omission arises out of or is based upon any information provided by
or on behalf of the Mortgage Loan Seller to the Purchaser with respect to the
Mortgage Loans or itself (collectively, and as further described below, the
"Mortgage Loan Seller Information"), and the Mortgage Loan Seller shall
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided, however,
that the Mortgage Loan Seller's agreement to indemnify and reimburse the
Underwriters, their respective officers and directors, or any person controlling
the Underwriters under this Section 5.2 shall not apply to any loss, claim,
damage, liability or expense arising out of or relating to claims asserted by
any person who purchased any registered Certificates pursuant to the Preliminary
Prospectus Supplement that are the subject of such claims if such person did not
receive a copy of the Prospectus Supplement upon or before settlement of the
sale or such registered Certificates to such Person, in any case where the
untrue statement or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact contained
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in such Preliminary Prospectus Supplement which was the basis of any such claim
was corrected in the Prospectus Supplement and provided, further, that the
indemnification provided by this Section 5.2 shall not apply to the extent that
such untrue statement or omission was made as a result of an error in any
aggregation (other than an aggregation made by the Mortgage Loan Seller or an
aggregation contained in tabular information provided by the Mortgage Loan
Seller) of, the information regarding the Mortgage Loans, the related Mortgagor
and the related Mortgaged Properties with comparable information relating to
other mortgage loans conveyed by other mortgage loan sellers. This indemnity
agreement will be in addition to any liability which the Mortgage Loan Seller
may otherwise have. For all purposes of this Agreement, and notwithstanding
anything herein contained to the contrary, the Mortgage Loan Seller Information
includes, and is limited to, (i) the representations and warranties of the
Mortgage Loan Seller set forth in Section 2 herein, (ii) summaries of the
individual Mortgage Loans and any letters, certifications and other materials
furnished to the Purchaser by the Mortgage Loan Seller relating to the Mortgage
Loans, (iii) reports of environmental assessments of the related Mortgaged
Properties, (iv) reports of site inspections of the related Mortgaged
Properties, (v) all information and documentation relating to the Mortgage Loans
and included in the investor and Rating Agencies due diligence files and any
documents or information relating to the Mortgage Loans and provided by the
Mortgage Loan Seller or any of its affiliates to potential investors, including
but not limited to Mortgage Loan legal, underwriting and servicing documents and
information, (vi) the information regarding the Mortgage Loans, property
managers and the Mortgage Loan Seller set forth in the Prospectus and in any
amendment thereof or supplement thereto, and (vii) any computer diskettes,
computer tapes and/or other electronic media containing (A) the information on
the Mortgage Loan Schedule, and (B) information regarding the Mortgage Loans
provided to the Depositor or any Underwriter and used in preparing Computational
Materials (as such term is defined in the no-action letter issued by the staff
of the Securities and Exchange Commission (the "SEC"), dated May 20, 1994 to
Kidder, Peabody Acceptance Corporation I), Collateral Term Sheets, ABS Term
Sheets, and/or Structural Term Sheets (as such terms are defined in the
no-action letter issued by the SEC, dated February 17, 1995 to the Public
Securities Association.
(b) The Purchaser shall indemnify and hold harmless the Mortgage Loan
Seller, its directors, officers, employees and agents, and each person, if any,
who controls the Mortgage Loan 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
Prospectus (in preliminary or final form), or in any amendment thereof or
supplement thereto, 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 the such untrue
statement, alleged untrue statement, omission or alleged omission is based upon
the Mortgage Loan Seller Information, and the Purchaser shall reimburse each
such indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage,
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liability or action. This indemnity agreement will be in addition to any
liability which the Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
5.2 of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 5.2, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
the indemnifying party from any liability which it may have to any indemnified
party under this Section 5.2, except to the extent that it has been prejudiced
in any material respect, or from any liability which it may have, otherwise than
under this Section 5.2. 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 reasonably satisfactory to such
indemnified party; provided 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 which 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 to such indemnified party for expenses
incurred by the indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in connection
with the assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel (together
with one local counsel, if applicable), approved by the Purchaser in the case of
subsection (a), representing the indemnified parties under subsection (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 in writing 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 be
only in respect of the counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 5.2 shall for
any reason be unavailable in accordance with its terms to an indemnified party
under this Section 5.2, then the Mortgage Loan Seller and the Purchaser shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities referred to in subsection (a) or
(b) above, in such proportion as is appropriate to reflect (i) the relative
benefits received by the Mortgage Loan Seller on the one hand and the Purchaser
on the other from the purchase and sale of the Mortgage Loans and the offering
of the Certificates and (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as
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is appropriate to reflect not only the relative benefits referred to in clause
(i) above, but also to reflect the relative fault of the Mortgage Loan Seller on
the one hand and the Purchaser on the other in connection with the statement or
omission that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Purchaser on the one hand and the Mortgage Loan Seller on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Certificates (before deducting expenses but net of underwriting
discounts and commissions) received by the Purchaser bear to the total net
proceeds received by the Mortgage Loan Seller with respect to the sale of the
Mortgage Loans (before deducting expenses). The relative fault 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 Mortgage Loan Seller or
the Purchaser and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Mortgage Loan Seller and the Purchaser agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were to be determined
by per capita allocation or by any other method of allocation that does not take
account of the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending against any
action or claim which is the subject of this subsection (d) subject to the
limitations therein provided under subsection (c). 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 also guilty
of such fraudulent misrepresentation.
5.3. Third Party Beneficiaries; Survival. The representations,
warranties and agreements made by the Mortgage Loan Seller in this Agreement are
made for the benefit of, and may be enforced by or on behalf of, the Trustee and
the Holders of Certificates to the same extent that the Purchaser has rights
against the Mortgage Loan Seller under this Agreement in respect of
representations, warranties and agreements made by the Mortgage Loan Seller
herein, and all such representations and warranties shall survive delivery of
the Mortgage Files to the Trustee until the termination of the Pooling and
Servicing Agreement. Section 5.2 of this Agreement shall survive delivery of the
Mortgage Files to the Trustee and remain in full force and effect after the
termination or cancellation of this Agreement.
5.4. Successors and Assigns. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors and
assigns, and no other person will have any right or obligation hereunder, other
than as provided in Section 5.3 hereof.
5.5. Governing Law. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of New York (without regard to
conflicts of laws principles), and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
5.6. Modifications. (a) Neither this Agreement nor any term hereof may
be changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or termination
is sought.
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(b) This Agreement may not be changed in any manner which would have a
material adverse effect on Holders of Certificates without the prior written
consent of the Trustee. The Trustee shall be protected in consenting to any such
change to the same extent provided in the Pooling and Servicing Agreement.
(c) 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.
5.7. Notices. All communications hereunder shall be in writing and
effective only upon receipt and, if sent to the Purchaser, will be mailed,
delivered or transmitted by facsimile and confirmed to it at PaineWebber
Mortgage Acceptance Corporation V, 1285 Avenue of the Americas, 19th Floor, New
York, New York 10019, Attention: Steven J. Plust, telecopy number: (212)
713-8607, with a copy to O'Melveny & Myers LLP, 153 E. 53rd Street, New York,
New York 10022, Attention: Gary Barnett, Esq., telecopy number: (212) 326-2061;
or, if sent to the Mortgage Loan Seller, will be mailed, delivered or
transmitted by facsimile and confirmed to it at Paine Webber Real Estate
Securities Inc., 1285 Avenue of the Americas, 19th Floor, New York, New York
10019, Attention: Steven J. Plust, telecopy number: (212) 713-8606, with a copy
to O'Melveny & Myers LLP, 153 E. 53rd Street, New York, New York 10022,
Attention: Gary Barnett, Esq., telecopy number: (212) 326-2061.
5.8. Severability. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid, then, to the extent permitted by applicable law, such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no way
affect the validity or enforceability of the other provisions of this Agreement.
5.9. Confirmation of Intent. It is the express intent of the parties
hereto that the conveyance contemplated by this Agreement be, and be treated for
all purposes as, a sale by the Mortgage Loan Seller of all the Mortgage Loan
Seller's right, title and interest in and to the Mortgage Loans. It is, further,
not the intention of the parties that such conveyance be deemed a pledge of the
Mortgage Loans by the Mortgage Loan Seller to secure a debt or other obligation
of the Mortgage Loan Seller. However, in the event that, notwithstanding the
intent of the parties, the Mortgage Loans are held to continue to be property of
the Mortgage Loan Seller then (a) this Agreement shall also be deemed to be a
security agreement under applicable law; (b) the transfer of the Mortgage Loans
provided for herein shall be deemed to be a grant by the Mortgage Loan Seller to
the Purchaser of a first priority security interest in all of the Mortgage Loan
Seller's right, title and interest in and to the Mortgage Loans and all amounts
payable to the holder of the Mortgage Loans in accordance with the terms thereof
and all proceeds of the conversion, voluntary or involuntary, of the foregoing
into cash, instruments, securities or other property; (c) the possession by the
Purchaser or any successor thereto of the related 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 New York
Uniform Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; and (d) notifications to Persons holding such property, and
acknowledgments, receipts or confirmations from Persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
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from, financial intermediaries, bailees or agents (as applicable) of the
Purchaser or any successor thereto for the purpose of perfecting such security
interest under applicable law. Any assignment of the interest of the Purchaser
pursuant to any provision hereof shall also be deemed to be an assignment of any
security interest created hereby.
[Signatures Appear on Next Page]
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IN WITNESS WHEREOF, the Purchaser and the Mortgage Loan Seller have
caused this Agreement to be duly executed by their respective officers as of the
day and year first above written.
PAINEWEBBER MORTGAGE ACCEPTANCE
CORPORATION V
as Purchaser
By: /s/ Steven J. Plust
___________________________________
Name: Steven J. Plust
Title: Managing Director
PAINE WEBBER REAL ESTATE SECURITIES INC.
as Mortgage Loan Seller
By: /s/ Steven J. Plust
___________________________________
Name: Steven J. Plust
Title: Managing Director
S-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT A MORTGAGE LOAN SCHEDULE EXHIBIT A
LOAN
ID PROPERTY NAME PROPERTY TYPE ORIGINATOR ADDRESS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
PW - 4817 Hunt Valley Executive Plaza Office PWREI 11350 McCormick Rd.
PW - 4818 The Galleria Mixed PWREI 1407-1447 York Road
PW - 3825 Beckman Coulter, Inc. CTL PWREI 317 and 1000 Lake Hazeltine Drive
PW - 4819 Timonium Corporate Center Office PWREI 9515 Deereco Road
PW - 7371 Kelsey Hayes Industrial PWREI 12000 and 12025 Tech Center Drive
PW - 6093 Concourse I & II Shopping Center Retail PWREI 820 & 827 Rector Drive
PW - 7215 Market Center East Retail PWREI 11130 Lomas Blvd.
PW - 1696 Kmart - Ponce CTL PWREI Road 591 & State Rd. #2
PW - 3346 INS Regional Office Industrial ARIES 2411 Boswell Road
PW - 3879 Regal Cinemas, Inc. CTL PWREI 3301 Plank Road
PW - 7009 The Patriots Apartments Multifamily PWREI 1272 South Union Road
PW - 3000 Peace Arch Factory Retail WARD COOK Interstate 5 & Birch Bay- Linden Road
PW - 6542 Rockport Apartments Multifamily PWREI 8500 Nairn
PW - 4035 Hartford Plaza Shopping Center Retail ARIES 1201-1275 Bell Avenue
PW - 2034 330-348 East Fordham Road Retail PWREI 340-348 East Fordham Road
PW - 6543 Heatherwood Apartments Multifamily PWREI 9001 S. Braeswood
PW - 5651 Best Western Hershey Hospitality ARIES NE Corner of Rt. 422 & Sipe Ave
PW - 4747 Larpenteur Estates Multifamily PWREI 1260-1280 W. Larpenteur Avenue
PW - 2365 Bancroft Plaza Industrial WARD COOK Bancroft between 5th and 6th Streets
PW - 4139 Rockford Portfolio Industrial PWREI 2076-2082 East University Drive;
503-519 and 605-653 South Rockford Drive;
620-648 South River Road
PW - 4149 Manor Parkway Industrial PWREI 10, 12A & 12B Manor Pkwy.
PW - 3766 Park Greenwood Apartments Multifamily ARIES SWQ of US 31 & Fry Road
PW - 2804 Laidlaw Transit, Inc. CTL PWREI 1200 S. Martin L. King Blvd.
PW - 6545 Cedar Branch Apartments Multifamily PWREI 1217 Blalock
PW - 4151A Emerald Hills Village MHP Mobile Home Park 8555 Bacardi Avenue
PW - 4151B Beaver Lake Estates MHP Mobile Home Park 2423 East Maryland Avenue
PW - 4151 Emerald Hills / Beaver Lake Estates MHP PWREI
PW - 1890 70 Jackson Drive Industrial PWREI 70 Jackson Drive
PW - 2005 Evans Corporate Park Industrial PWREI 8350 East Evans Road
PW - 4370 Hampton Inn Columbia Hospitality PWREI 1551 Barbara Drive
PW - 2982A Summit Bank-Collingswood Retail 836-46 Haddon Avenue
PW - 2982B Summit Bank-Madison Retail 16 Waverly Place
PW - 2982C Summit Bank-Springfield Retail 175 Morris Avenue
PW - 2982D Summit Bank-Edison Retail 46 Parsonage Road
PW - 2982E Summit Bank-Plainfield Retail 335-345 East Front Street
PW - 2982F Summit Bank-Westfield Retail 173 Elm Street
PW - 2982 Summit Bank Portfolio PWREI
PW - 4923 Howard Johnson Oceanfront Hospitality PWREI 2560 North Atlantic Avenue
PW - 3441 Loft Building Industrial PWREI 516-530 West 25th Street
PW - 4975 Napa Olympia Mobilodge Mobile Home Park PWREI 244 American Canyon Road
PW - 6460 D.C. Farmers' Market Industrial SUBURBAN 1309& 1325 5th Street
PW - 3471 Grand Place Commons Industrial PWREI 40020-40028 Grand River
PW - 2550 Days Inn Eastgate Hospitality ARIES 5245 West Irlo Bronson Memorial Hwy
PW - 3397 Executive Square Office Park Office COLLATERAL 4277-4329 Memorial Drive
MORTGAGE
PW - 3086 Comfort Inn & Suites - Orangeburg Hospitality VALUEXPRESS 3671 St. Matthews Road
PW - 6024 Cleveland Clinic Office PWREI 2950 Cypress Creek Road
PW - 6544 Creekbend Apartments Multifamily PWREI 7600 Creekbend
PW - 4047 Horton Court Office ARIES 901-933 4th Avenue
PW - 2348 Best Western University Inn Hospitality VALUEXPRESS 1310 Highway 54 East
PW - 3189 Collegiate Apartments Multifamily ARIES 485 Taylor Road
PW - 6023 29 East 61st Street Mixed PWREI 29 East 61st Street
PW - 4479 Airport Parkway Quality Inn Hospitality ARIES 2400 Wilkinson Boulevard
PW - 4319 Best Western La Sammana Hospitality VALUEXPRESS 817-A Ward Blvd. South
PW - 6025 Pill Box Plaza Retail PWREI 1700 NW 122nd Terrace
PW - 2358 Post Haste Plaza Retail PWREI 4401-4575 Sheridan Street
PW - 2064 Liberty Square Shopping Center Retail PWREI 6214 US Highway 98N
PW - 6329 Spring Creek Plaza Retail PWREI SWC Pershing Rd. and Monroe St.
PW - 4709 Hampton Inn- Clarksville Hospitality PWREI 190 Holiday Road
PW - 4625 Fountain Court Office PWREI 8250-8300 College Parkway
PW - 3886 Mako Marine Industrial PWREI 4355 NW 128th Street
PW - 3268 Tandy - East Hanover CTL PWREI 301 Route 10
PW - 4355 Best Western Regent Inn Hospitality VALUEXPRESS 123 Storrs Road
PW - 6265 Executive Resort Apartments Multifamily ARIES 1200 Holden Avenue
PW - 3265A Comfort Inn Hospitality N.C. Highway 24/27
PW - 3265B Rodeway Inn Hospitality 200 Henson Street
PW - 3265 Comfort Inn/Rodeway Inn PWREI
PW - 1481 Golden State Warehouse Industrial PWREI 41 Cook Drive
PW - 4345 Richmond Oaks Apartments Multifamily SUBURBAN 1768 Richmond Circle
PW - 3146 Econolodge - Pooler Hospitality VALUEXPRESS 500 East Highway 80
PW - 3821 Econo Lodge West Hospitality SUBURBAN 2355 South Beulah Boulevard
PW - 3322 216 East 49th Street Office PWREI 216 East 49th Street
PW - 4629 South Wabash Office ARIES 1130 South Wabash Avenue
PW - 2969 163 First Avenue Multifamily PWREI 163 First Avenue
PW - 3615 Cambridge Court Apartments Multifamily PWREI 3700 Buford Highway
PW - 7098 Washington Grandview Office PWREI 12211 W. Washington Blvd.
PW - 4467 Hallmark Motor Inn Hospitality SPARKS 4500 Central Texas Expressway
PW - 2346 Mountainside Crossing Retail PWREI 4221 E. Chandler Boulevard
PW - 4048 Hard Rock Cafe Retail ARIES 801-825 Fourth Avenue
PW - 3185 Eckerd - Palm Beach CTL PWREI 7030 Jog Road
PW - 3736 University Commons Apartments Multifamily PWREI 250 University Avenue
PW - 2233 Century Resources Industrial PWREI 1450 Concourse Drive
PW - 3714 Super 8 Phoenix Hospitality SPARKS 4021 North 27th Avenue
PW - 5668 9000 Professional Centre Office ARIES 9000 Southwest 87th Court
PW - 3035 Ramada Inn South Hospitality VALUEXPRESS 5624 Cagle Road
PW - 5994A Crestmont Estates Multifamily 3555-3575 Babbs Road
PW - 5994B Independence Townhomes Multifamily 1929-1939 Independence Boulevard
PW - 5994C Residences at Independence Multifamily 1899-1907 Independence Boulevard
PW - 5994 Morgan Mitchell Properties WEXFORD
PW - 1623 Washington Place Apartments Multifamily PWREI 21-25 Howe St/7-11 Washington St.
PW - 3329 Building 210 Industrial PWREI 210 Aspen Airport Business Center
PW - 6314 Gardens Of Sunrise Multifamily WEXFORD 3550 NW 91 Lane
PW - 4008 Days Inn South Hospitality VALUEXPRESS 4220 South I-35
PW - 4112 Heritage Apartments Multifamily PWREI 27662 Nicole Drive
PW - 4762 Comfort Inn Alexandria Hospitality ARIES 7212 Richmond Highway
PW - 4674 1417-39 Sherwin Avenue Multifamily PWREI 1417-39 Sherwin Avenue
PW - 3463 Superpetz Shopping Center Retail STANDARD 1610 Sam Rittenburg Boulevard
PW - 6021 Mercede Americana Plaza Retail PWREI 3842 North University Drive
PW - 4896 School House Terrace Multifamily VALUEXPRESS 437 E. Belvidere Street
PW - 3666 Comfort Inn- Byron Hospitality VALUEXPRESS 607 Chapman Road
PW - 6022 Wearnes Hollingsworth Industrial PWREI 1601 North Powerline Road
PW - 3901 Wheat First Union Building Office PWREI 29-37 South Market Street
PW - 3563A Vezelay Apartments (Westwood) Multifamily 2520-32 Harrison Avenue
PW - 3563B Vezelay Apartments (Harrison) Multifamily 2215-17 Harrison Avenue
PW - 3563C Vezelay Apartments (McHenry) Multifamily 3344-46 McHenry Avenue
PW - 3563D Vezelay Apartments (Amberwoods) Multifamily 7803-7821 Dawn Road
PW - 3563 Vezelay Apartments Multifamily PWREI
PW - 3709 Knight's Inn Hospitality PWREI 2942 Lawrenceville Highway
PW - 4553 Comfort Inn Vidalia Hospitality ARIES 1509 East First Street
PW - 7313 Woodlen Glen Apartments Multifamily WEXFORD 8405 Broadway Blvd.
PW - 1586 Tuckahoe Apartments Multifamily PWREI 88 Lake Avenue
PW - 3466 Adobe Inn Hospitality PWREI Dolores & 8th Street
PW - 1596 Junction Blvd. Retail PWREI 37-21 Junction Blvd.
PW - 4153 Colonial Village MHP Mobile Home Park PWREI 2075 Rustad Lane
PW - 5025 Comfort Inn Clinton Hospitality VALUEXPRESS 103 Clinton Center Drive
PW - 3286 Blue Coral Building Industrial PWREI 1215 Valley Belt Road
PW - 1777 Villager Lodge-Charlotte Hospitality PWREI 2401 Wilkinson Blvd.
PW - 6112 Hollywood 95 Office PWREI 2700-2750 North 29th Avenue
PW - 6414 Harbour Oaks Apartments Multifamily PWREI 1565 Crider Road
PW - 3686 Super 8-Baton Rouge Hospitality PWREI 11444 Reulet Ave.
PW - 2526 New Exchange Office PWREI 1307 West 6th Street
PW - 3076 Travelodge South Hospitality SPARKS 1274 Murfreesboro Pike
PW - 5083 Route 34 Industrial Industrial PWREI 1709 Route 34
PW - 4678 3501 McKinney Retail PWREI 3501 McKinney
PW - 3426 Comfort Inn Abilene Hospitality SPARKS 1758 East Interstate 20
PW - 3893 Super 8 Fortuna Hospitality PWREI 1805 Alamar Way
PW - 2443 Park 95 Offices Office PWREI 13540-13632 West 95th Street
PW - 4991 Mayfair Apartments Multifamily SUBURBAN 1010 Mayfair Avenue
PW - 3545A 289-291 Devonshire Street Office 289-291 Devonshire Street
PW - 3545B Shell Pointe Apartments Multifamily 56 Longwood Avenue
PW - 3545 Devonshire/Longwood PWREI
PW - 3616 Exeter House Apartments Multifamily PWREI 315 Charger Street
PW - 3968 Langtree Townhomes Multifamily PWREI 505-659 Baylor Drive
PW - 2509 TDC Filter Industrial PWREI 1331 South 55th Court
PW - 3807 Burnett Highland Building Office PWREI 1991 Ford Parkway
PW - 6377 May Avenue Self-Storage Self Storage PWREI 2828 N.W. 62nd St.
PW - 3970 Millertown Center Retail ARIES Loves Creek Road & Millertown Pike
PW - 3093 77 Pennington Avenue Multifamily PWREI 77 Pennington Avenue
PW - 3031 Corporate Square East Office VALUEXPRESS 2511 East 46 Street
PW - 3687 Super 8 Hammond Hospitality PWREI 200 Westin Oak Drive
PW - 2799 The Shops of Greenbriar Retail PWREI 2925 Headland Drive
PW - 7134A Greentree Apartments Multifamily 1755 NE 164 Street
PW - 7134B Keystone Apartments Multifamily 1801 Northeast 124th Street
PW - 7134 GreenTree & Keystone Apartments PWREI
PW - 7133 Villa Joyosa Multifamily PWREI 13150 Memorial Highway
PW - 3570 Super 8 Liverpool Hospitality VALUEXPRESS 7360 Oswego Road (Route 57)
PW - 3176 Quail Creek Self Storage Self Storage PWREI 3030 West Memorial Road
PW - 4546 Cresap Knoll & Yonkers Apartments Multifamily PWREI 12914-12918 Cresap Knoll Avenue
PW - 7021 Elegante Apartments Multifamily PWREI 1821-1851 NE 168th Street
PW - 3214 Hanna Place Office Park Office PWREI 8858 Cedar Springs Lane
PW - 4426 150 Spring Street Mixed IPI 150 Spring Street
PW - 4897 Days Inn Ladson Hospitality VALUEXPRESS 119 Gateway Drive
PW - 2903 Rockland & Whitman Other PWREI 346 Union St./458 South Ave.
PW - 2495 Metro Plaza Retail Center Retail PWREI 2601 West Dunlap Avenue
PW - 3618 Barker House Apartments Multifamily PWREI 261-273 Barker Street
PW - 1445 Ethan Allen Building Retail PWREI 164 Highway 35 South
PW - 4309 Hearth House Multifamily IPI 50 Avenue A
PW - 4038 3680 Cascade Road Office PWREI 3680 Cascade Road
PW - 4614 Days Inn Jennings Hospitality VALUEXPRESS 2002 Port Drive
PW - 3619 Carlyle House Apartments Multifamily PWREI 135-145 Ward Street
PW - 4371 Riverside Village Apartments Multifamily ARIES 650 Dixon Boulevard
PW - 5254 Villa Verde I Multifamily PWREI 1300/1308 Pennsylvania Avenue
PW - 3515 Hollywood Video Retail PWREI 23 West 127 Army Trail Road
PW - 1663 122-128 Cambridge Street Retail PWREI 122-128 Cambridge Street
PW - 5947 Tudor House Apartments Multifamily SUBURBAN 1 Campus Road
<PAGE>
<CAPTION>
LOAN ZIP MORTGAGE RATE NET ORIGINAL CUT-OFF DATE BALLOON/REPAYMENT
ID CITY STATE CODE RATE TYPE RATE BALANCE BALANCE BALANCE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
PW - 4817 Hunt Valley MD 21031 6.59% Fixed 0.06482 $33,400,000 $33,176,730 $28,865,223
PW - 4818 Lutherville MD 21093 6.69 Fixed 6.5815 18,600,000 18,478,392 16,118,563
PW - 3825 Chaska MN 55318 7.26 Fixed 7.1515 15,087,308 14,875,024 5,178,669
PW - 4819 Timonium MD 21093 6.69 Fixed 6.5815 12,600,000 12,517,620 10,919,027
PW - 7371 Livonia MI 48150 7.8 Fixed 7.6915 11,480,000 11,474,466 10,252,514
PW - 6093 San Antonio TX 78216 7.8 Fixed 7.6915 10,962,000 10,956,716 9,776,744
PW - 7215 Albuquerque NM 87112 7.74 Fixed 7.6315 9,175,000 9,170,484 8,171,044
PW - 1696 Ponce PR 731 7.24 Fixed 7.1315 8,820,982 8,664,604 69,035
PW - 3346 Chula Vista CA 91914 7.15 Fixed 7.0415 8,500,000 8,342,334 5,849,039
PW - 3879 Fredericksburg VA 22407 7.45 Fixed 7.3415 7,911,959 7,911,959 2,461,730
PW - 7009 Gastonia NC 28054 7.77 Fixed 7.6615 7,700,000 7,690,800 6,860,020
PW - 3000 Blaine WA 98240 7.03 Fixed 6.9215 7,725,000 7,671,620 6,753,275
PW - 6542 Houston TX 77074 7.51 Fixed 7.4015 7,595,000 7,585,297 6,723,400
PW - 4035 Hartford WI 53027 7.1 Fixed 6.9915 7,000,000 6,952,383 6,130,629
PW - 2034 Bronx NY 10458 7.25 Fixed 7.1415 6,500,000 6,466,506 5,041,176
PW - 6543 Houston TX 77074 7.62 Fixed 7.5115 6,321,000 6,313,149 5,610,863
PW - 5651 Hershey PA 17033 8.05 Fixed 7.9415 5,950,000 5,908,372 4,923,155
PW - 4747 St. Paul MN 55108 7.52 Fixed 7.4115 5,500,000 5,431,644 3,833,547
PW - 2365 Berkeley CA 94710 6.59 Fixed 6.4815 5,100,000 5,065,908 4,407,564
PW - 4139 Tempe AZ 85281 7.92 Fixed 7.8115 5,000,000 4,994,257 4,470,649
PW - 4149 Salem NH 3079 7.26 Fixed 7.1515 5,000,000 4,961,082 4,557,745
PW - 3766 Greenwood IN 46142 7.1 Fixed 6.9915 5,000,000 4,955,277 4,379,795
PW - 2804 Las Vegas NV 89102 6.61 Fixed 6.5015 4,900,000 4,742,905 1,546,889
PW - 6545 Houston TX 77055 7.62 Fixed 7.5115 4,645,000 4,639,231 4,123,155
PW - 4151A Inver Grove Heights MN 55075 2,775,000 2,692,505 67,817
PW - 4151B Maplewood MN 55119 1,970,000 1,911,436 48,144
PW - 4151 6.51 Fixed 6.51 4,745,000 4,603,940 115,961
PW - 1890 Cranford NJ 7016 7.01 Fixed 6.9015 4,400,000 4,366,567 3,845,065
PW - 2005 Scottsdale AZ 85260 7.11 Fixed 7.0015 4,350,000 4,317,700 3,811,297
PW - 4370 Columbia SC 29223 7.85 Fixed 7.7415 4,350,000 4,298,205 213,590
PW - 2982A Collingswood NJ 8108 432,000 420,773 14,643
PW - 2982B Madison NJ 7940 289,000 281,489 9,796
PW - 2982C Springfield NJ 7081 420,000 409,085 14,236
PW - 2982D Edison NJ 8837 680,000 662,328 23,049
PW - 2982E Plainfield NJ 7060 129,000 125,647 4,373
PW - 2982F Westfield NJ 7090 2,300,000 2,240,226 77,959
PW - 2982 6.64 Fixed 6.5315 4,250,000 4,139,548 144,055
PW - 4923 Daytona Beach FL 32118 6.49 Fixed 6.3815 3,900,000 3,864,307 3,078,542
PW - 3441 New York NY 10001 7.07 Fixed 6.9615 3,900,000 3,849,159 3,108,483
PW - 4975 American Canyon CA 94589 8.12 Fixed 8.0115 3,850,000 3,823,400 3,589,039
PW - 6460 Washington D.C. DC 20002 9.2 Fixed 9.0915 3,825,000 3,819,352 3,266,932
PW - 3471 Novi MI 48375 7.4 Fixed 7.2915 3,615,000 3,594,905 3,191,412
PW - 2550 Kissimmee FL 34746 9.59 Fixed 9.4815 3,500,000 3,467,048 2,806,358
PW - 3397 Decatur GA 30032 6.95 Fixed 6.8415 3,400,000 3,363,037 2,723,146
PW - 3086 Orangeburg SC 29118 7.81 Fixed 7.7015 3,300,000 3,266,101 2,712,475
PW - 6024 Fort Lauderdale FL 33309 7.95 Fixed 7.8415 3,170,000 3,168,551 2,967,261
PW - 6544 Houston TX 77071 7.62 Fixed 7.5115 3,148,000 3,144,090 2,794,336
PW - 4047 San Diego CA 92101 7.4 Fixed 7.2915 3,100,000 3,068,825 2,517,069
PW - 2348 Chapel Hill NC 27514 6.96 Fixed 6.8515 3,025,000 2,996,108 2,424,326
PW - 3189 Montgomery AL 36117 7.15 Fixed 7.0415 2,936,000 2,916,251 2,574,688
PW - 6023 New York NY 10021 7.6 Fixed 7.4915 2,900,000 2,898,503 2,699,839
PW - 4479 Charlotte NC 28208 7.5 Fixed 7.3915 2,900,000 2,874,821 2,362,528
PW - 4319 Wilson NC 27893 7.51 Fixed 7.4015 2,900,000 2,871,394 2,362,390
PW - 6025 Pembroke Pines FL 33026 8.4 Fixed 8.2915 2,850,000 2,848,903 2,685,507
PW - 2358 Hollywood FL 33021 7.64 Fixed 7.5315 2,850,000 2,825,870 210,440
PW - 2064 Lakeland FL 33809 7.23 Fixed 7.1215 2,850,000 2,814,502 2,303,548
PW - 6329 Decatur IL 62526 8.15 Fixed 8.0415 2,800,000 2,798,812 2,518,121
PW - 4709 Clarksville TN 37040 6.39 Fixed 6.2815 2,850,000 2,783,596 67,840
PW - 4625 Fort Myers FL 33907 6.26 Fixed 6.1515 2,800,000 2,779,883 2,397,652
PW - 3886 Opa Locka FL 33054 7.4 Fixed 7.2915 2,800,000 2,775,250 2,274,272
PW - 3268 East Hanover NJ 7936 6.75 Fixed 6.6415 2,904,245 2,769,932 33,055
PW - 4355 Mansfield Center CT 6250 7.69 Fixed 7.5815 2,800,000 2,756,214 132,403
PW - 6265 Orlando FL 32939 8.05 Fixed 7.9415 2,700,000 2,694,952 2,235,062
PW - 3265A Albemarle NC 28001 1,900,000 1,837,076 58,109
PW - 3265B Albemarle NC 28001 825,000 797,678 25,232
PW - 3265 7.53 Fixed 7.4215 2,725,000 2,634,753 83,341
PW - 1481 Henrietta NY 14623 7.12 Fixed 7.0115 2,560,000 2,532,971 2,061,112
PW - 4345 Atlanta GA 30315 7.15 Fixed 7.0415 2,500,000 2,476,903 2,015,317
PW - 3146 Pooler GA 31322 7.81 Fixed 7.7015 2,500,000 2,472,003 2,055,760
PW - 3821 Flagstaff AZ 86001 7.66 Fixed 7.5515 2,450,000 2,418,545 1,908,153
PW - 3322 New York NY 10017 7.31 Fixed 7.2015 2,425,000 2,411,233 2,135,982
PW - 4629 Chicago IL 60605 7.6 Fixed 7.4915 2,400,000 2,387,276 2,129,361
PW - 2969 New York NY 10003 7.21 Fixed 7.1015 2,400,000 2,382,589 2,108,217
PW - 3615 Atlanta GA 30329 6.92 Fixed 6.8115 2,400,000 2,354,142 94,199
PW - 7098 Culver City CA 90066 8.18 Fixed 8.0715 2,300,000 2,299,035 2,069,904
PW - 4467 Killeen TX 76541 7.63 Fixed 7.5215 2,315,000 2,297,554 1,892,437
PW - 2346 Phoenix AZ 85044 7.41 Fixed 7.3015 2,300,000 2,284,081 2,030,662
PW - 4048 San Diego CA 92101 7.2 Fixed 7.0915 2,300,000 2,261,678 95,985
PW - 3185 Palm Beach FL 33406 7.05 Fixed 6.9415 2,294,655 2,259,987 614,398
PW - 3736 Troy AL 36081 6.7 Fixed 6.5915 2,280,000 2,257,223 1,812,446
PW - 2233 Rapid City SD 57701 7.18 Fixed 7.0715 2,275,000 2,228,908 1,567,817
PW - 3714 Phoenix AZ 85017 7.28 Fixed 7.1715 2,225,000 2,204,909 1,800,726
PW - 5668 Kendall FL 33176 8.3 Fixed 8.1915 2,175,000 2,171,862 1,963,823
PW - 3035 Jacksonville FL 32216 7.9 Fixed 7.7915 2,200,000 2,155,435 111,279
PW - 5994A Zanesville OH 43701 412,568 412,110 370,027
PW - 5994B Lancaster OH 43130 737,862 737,043 661,779
PW - 5994C Lancaster OH 43130 999,570 998,461 896,502
PW - 5994 8.05 Fixed 7.9415 2,150,000 2,147,615 1,928,308
PW - 1623 Methuen MA 1844 7.07 Fixed 6.9615 2,150,000 2,124,779 1,728,656
PW - 3329 Aspen CO 81611 7.36 Fixed 7.2515 2,125,000 2,099,147 1,724,321
PW - 6314 Sunrise FL 33351 7.61 Fixed 7.5015 2,100,000 2,097,385 1,863,614
PW - 4008 Austin TX 78745 7.76 Fixed 7.6515 2,100,000 2,076,262 1,724,331
PW - 4112 Harrison Township MI 48045 6.66 Fixed 6.5515 2,050,000 2,036,507 1,775,060
PW - 4762 Alexandria VA 22306 7.5 Fixed 7.3915 2,050,000 2,032,201 1,670,062
PW - 4674 Chicago IL 60626 6.7 Fixed 6.5915 2,000,000 1,985,134 1,733,149
PW - 3463 Charleston SC 29407 6.93 Fixed 6.8215 2,000,000 1,978,183 1,600,858
PW - 6021 Sunrise FL 33321 8.81 Fixed 8.7015 1,900,000 1,896,954 1,606,173
PW - 4896 Nazareth PA 18064 7.4 Fixed 7.2915 1,900,000 1,885,096 1,542,658
PW - 3666 Byron GA 31008 7.78 Fixed 7.6715 1,900,000 1,864,455 94,110
PW - 6022 Pompano Beach FL 33069 7.65 Fixed 7.5415 1,860,000 1,859,056 1,732,989
PW - 3901 Frederick MD 21701 7.36 Fixed 7.2515 1,810,000 1,797,323 1,596,032
PW - 3563A Cincinnati OH 45211 311,000 303,095 8,269
PW - 3563B Cincinnati OH 45211 403,000 392,757 10,715
PW - 3563C Cincinnati OH 45225 182,000 177,374 4,839
PW - 3563D Cincinnati OH 45237 929,000 905,387 24,700
PW - 3563 6.89 Fixed 6.7815 1,825,000 1,778,612 48,523
PW - 3709 Tucker GA 30084 7.84 Fixed 7.7315 1,800,000 1,769,508 1,269,041
PW - 4553 Vidalia GA 30474 7.48 Fixed 7.3715 1,770,000 1,748,931 1,441,425
PW - 7313 Houston TX 77065 8.2 Fixed 8.0915 1,725,000 1,724,282 1,553,151
PW - 1586 Tuckahoe NY 10707 7.09 Fixed 6.9815 1,700,000 1,686,221 1,489,208
PW - 3466 Carmel CA 93921 7.66 Fixed 7.5515 1,700,000 1,683,670 1,390,973
PW - 1596 Queens NY 11368 7.01 Fixed 6.9015 1,700,000 1,664,785 1,164,405
PW - 4153 Mounds View MN 55112 6.51 Fixed 6.4015 1,650,000 1,600,949 40,325
PW - 5025 Clinton MS 39056 7.75 Fixed 7.6415 1,600,000 1,580,699 1,124,183
PW - 3286 Brooklyn Heights OH 44131 7.2 Fixed 7.0915 1,600,000 1,579,963 1,292,041
PW - 1777 Charlotte NC 28208 7.54 Fixed 7.4315 1,600,000 1,551,833 48,441
PW - 6112 Hollywood FL 33020 8.05 Fixed 7.9415 1,550,000 1,549,317 1,453,059
PW - 6414 Marietta GA 30060 7.65 Fixed 7.5415 1,550,000 1,549,213 1,377,356
PW - 3686 Baton Rouge LA 70816 8.35 Fixed 8.2415 1,552,000 1,534,699 1,112,966
PW - 2526 Corona CA 92720 7.42 Fixed 7.3115 1,525,000 1,509,717 1,238,974
PW - 3076 Nashville TN 37217 7.71 Fixed 7.6015 1,520,000 1,502,658 1,246,266
PW - 5083 Wall Township NJ 7719 7.52 Fixed 7.4115 1,500,000 1,493,109 1,221,953
PW - 4678 Dallas TX 75204 7.3 Fixed 7.1915 1,500,000 1,486,695 717,852
PW - 3426 Abilene TX 79601 7.7 Fixed 7.5915 1,500,000 1,484,278 1,229,006
PW - 3893 Fortuna CA 95540 7.28 Fixed 7.1715 1,500,000 1,478,185 64,478
PW - 2443 Lenexa KS 66215 7.05 Fixed 6.9415 1,470,000 1,447,974 1,008,063
PW - 4991 Madison WI 53714 8.25 Fixed 8.1415 1,440,000 1,435,065 1,297,492
PW - 3545A Boston MA 2110 1,050,000 1,035,276 845,293
PW - 3545B Wareham MA 2558 400,000 394,391 322,016
PW - 3545 MA 7.11 Fixed 7.0015 1,450,000 1,429,667 1,167,309
PW - 3616 Revere MA 2151 7.05 Fixed 6.9415 1,450,000 1,425,373 608,624
PW - 3968 Longview TX 75601 7.53 Fixed 7.4215 1,400,000 1,390,583 1,335,267
PW - 2509 Cicero IL 60804 6.76 Fixed 6.6515 1,400,000 1,381,045 1,115,225
PW - 3807 St. Paul MN 55116 7.04 Fixed 6.9315 1,400,000 1,376,191 56,064
PW - 6377 Oklahoma City OK 73112 8.36 Fixed 8.2515 1,370,000 1,367,592 1,144,009
PW - 3970 Knoxville TN 37919 7.4 Fixed 7.2915 1,350,000 1,340,634 1,191,611
PW - 3093 Passaic NJ 7055 7.39 Fixed 7.2815 1,350,000 1,336,400 91,508
PW - 3031 Indianapolis IN 46205 7.45 Fixed 7.3415 1,350,000 1,333,842 1,098,408
PW - 3687 Hammond LA 70816 7.96 Fixed 7.8515 1,300,000 1,284,742 920,024
PW - 2799 Atlanta GA 30344 7.58 Fixed 7.4715 1,300,000 1,283,238 1,061,437
PW - 7134A North Miami FL 33162 822,000 820,386 675,583
PW - 7134B North Miami FL 33162 455,000 454,107 373,954
PW - 7134 7.8 Fixed 7.6915 1,277,000 1,274,493 1,049,536
PW - 7133 North Miami FL 33161 7.8 Fixed 7.6915 1,264,000 1,261,519 1,038,852
PW - 3570 Liverpool NY 13090 7.54 Fixed 7.4315 1,275,000 1,254,668 58,041
PW - 3176 Oklahoma City OK 73134 7.1 Fixed 6.9915 1,250,000 1,241,497 1,094,755
PW - 4546 Cumberland MD 21502 8.1 Fixed 7.9915 1,200,000 1,193,977 994,262
PW - 7021 North Miami Beach FL 33162 7.8 Fixed 7.6915 1,195,000 1,192,654 982,144
PW - 3214 Knoxville TN 37923 7.63 Fixed 7.5215 1,200,000 1,191,466 1,065,685
PW - 4426 New York NY 10012 7.35 Fixed 7.2415 1,200,000 1,190,505 972,855
PW - 4897 Ladson SC 29456 8.15 Fixed 8.0415 1,200,000 1,186,264 854,764
PW - 2903 Rockland/Whitman MA 2370 7.52 Fixed 7.4115 1,200,000 1,185,820 978,401
PW - 2495 Phoenix AZ 85021 7.26 Fixed 7.1515 1,200,000 1,166,607 33,995
PW - 3618 Lowell MA 1850 7.1 Fixed 6.9915 1,200,000 1,166,129 32,949
PW - 1445 Eatontown NJ 7724 7.31 Fixed 7.2015 1,150,000 1,127,096 796,211
PW - 4309 New York NY 10009 6.8 Fixed 6.6915 1,100,000 1,091,891 877,156
PW - 4038 Atlanta GA 30331 7.34 Fixed 7.2315 1,050,000 1,043,235 925,261
PW - 4614 Jennings LA 70546 7.6 Fixed 7.4915 1,012,500 1,000,046 46,677
PW - 3619 Revere MA 2151 7.05 Fixed 6.9415 1,000,000 971,649 27,190
PW - 4371 Cocoa FL 32922 7.45 Fixed 7.3415 950,000 938,630 772,954
PW - 5254 Miami Beach FL 33139 8.35 Fixed 8.2415 900,000 896,991 812,790
PW - 3515 Glendale Heights IL 60139 7.41 Fixed 7.3015 850,000 839,752 690,764
PW - 1663 Boston MA 2114 6.97 Fixed 6.8615 800,000 790,450 641,242
PW - 5947 Peekskill NY 10566 8.6 Fixed 8.4915 725,000 724,743 658,740
467,597,425
<PAGE>
<CAPTION>
LOAN TERM TERM MATURITY ARD TERM FIRST PAYMENT DEBT APPRAISED CURRENT
ID (MOS.) (MOS.) DATE DATE (MOS.) DATE SERVICE VALUE LTV
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
PW - 4817 120 112 10/1/28 10/1/08 360 11/1/98 213,091.49 $46,750,000 71.00%
PW - 4818 120 112 10/1/28 10/1/08 360 11/1/98 119,898.35 25,000,000 73.9
PW - 3825 239 228 6/5/18 293.577 8/5/98 110,000.00 15,400,000 96.6
PW - 4819 120 112 10/1/28 10/1/08 360 11/1/98 81,221.46 16,750,000 74.7
PW - 7371 119 118 5/1/29 4/1/09 360 6/1/99 82,641.13 15,980,000 71.8
PW - 6093 120 119 5/1/09 360 6/1/99 78,912.20 14,000,000 78.3
PW - 7215 120 119 5/1/09 360 6/1/99 65,667.43 12,300,000 74.6
PW - 1696 238 229 7/1/18 NAP 10/1/98 70,180.11 9,500,000 91.2
PW - 3346 120 110 8/1/08 240 9/1/98 66,667.90 10,700,000 78
PW - 3879 299 288 6/1/23 NAP 8/1/98 50,757.41 8,200,000 96.5
PW - 7009 120 118 4/1/09 360 5/1/99 55,270.20 9,694,000 79.3
PW - 3000 120 111 9/1/08 360 10/1/98 51,550.35 10,300,000 74.5
PW - 6542 120 118 4/1/09 360 5/1/99 53,157.36 9,900,000 76.6
PW - 4035 120 111 9/1/08 360 10/1/98 47,042.24 8,900,000 78.1
PW - 2034 180 173 11/1/13 360 12/1/98 44,341.46 10,800,000 59.9
PW - 6543 120 118 4/1/09 360 5/1/99 44,717.90 8,100,000 77.9
PW - 5651 120 113 11/1/08 300 12/1/98 46,120.32 8,000,000 73.9
PW - 4747 120 113 11/1/08 240 12/1/98 44,374.91 8,100,000 67.1
PW - 2365 120 112 10/1/08 360 11/1/98 32,537.92 6,800,000 74.5
PW - 4139 120 118 4/1/09 360 5/1/99 36,409.77 6,600,000 75.7
PW - 4149 96 85 7/1/06 360 8/1/98 34,142.73 7,000,000 70.9
PW - 3766 120 108 6/1/08 360 7/1/98 33,601.60 6,250,000 79.3
PW - 2804 116 107 5/1/08 NAP 10/1/98 43,644.95 5,210,000 91
PW - 6545 120 118 4/1/09 360 5/1/99 32,861.04 5,860,000 79.2
PW - 4151A 24,188.49 8,400,000
PW - 4151B 17,171.65 5,200,000
PW - 4151 180 171 9/1/13 180 10/1/98 41,360.14 13,600,000 33.9
PW - 1890 120 110 8/1/08 360 9/1/98 29,302.87 6,900,000 63.3
PW - 2005 120 110 8/1/08 360 9/1/98 29,262.73 5,650,000 76.4
PW - 4370 240 233 11/1/18 240 12/1/98 35,980.11 6,469,000 66.4
PW - 2982A 3,796.51 475,000
PW - 2982B 2,539.80 375,000
PW - 2982C 3,691.05 625,000
PW - 2982D 5,975.99 1,050,000
PW - 2982E 1,133.68 275,000
PW - 2982F 20,212.91 3,250,000
PW - 2982 179 171 9/1/13 180 11/1/98 37,349.94 6,050,000 68.4
PW - 4923 120 113 11/1/08 300 12/1/98 26,308.71 5,225,000 74
PW - 3441 120 112 10/1/08 300 11/1/98 27,738.79 6,200,000 62.1
PW - 4975 60 53 11/1/03 300 12/1/98 30,021.62 4,980,000 76.8
PW - 6460 120 118 4/1/09 300 5/1/99 32,624.74 5,500,000 69.4
PW - 3471 120 112 10/1/08 360 11/1/98 25,029.53 4,540,000 79.2
PW - 2550 102 95 5/1/07 240 12/1/98 32,830.57 7,900,000 43.9
PW - 3397 120 111 9/1/08 300 10/1/98 23,922.15 5,100,000 65.9
PW - 3086 120 110 8/1/08 300 9/1/98 25,055.98 4,550,000 71.8
PW - 6024 84 83 5/1/06 360 6/1/99 23,149.94 4,000,000 79.2
PW - 6544 120 118 4/1/09 360 5/1/99 22,270.52 4,000,000 78.6
PW - 4047 120 111 9/1/08 300 10/1/98 22,707.46 5,100,000 60.2
PW - 2348 120 112 10/1/08 300 11/1/98 21,302.94 5,200,000 57.6
PW - 3189 120 111 9/1/08 360 10/1/98 19,829.94 3,670,000 79.5
PW - 6023 84 83 5/1/06 360 6/1/99 20,476.17 5,500,000 52.7
PW - 4479 120 112 10/1/08 300 11/1/98 21,430.74 3,920,000 73.3
PW - 4319 120 111 9/1/08 300 10/1/98 21,449.61 3,900,000 73.6
PW - 6025 84 83 5/1/06 360 6/1/99 21,712.37 4,880,000 58.4
PW - 2358 300 292 10/1/23 300 11/1/98 21,321.46 3,950,000 71.5
PW - 2064 120 109 7/1/08 300 8/1/98 20,563.29 4,000,000 70.4
PW - 6329 120 119 5/1/09 360 6/1/99 20,838.95 3,740,000 74.8
PW - 4709 180 173 11/1/13 180 12/1/98 24,654.54 5,000,000 55.7
PW - 4625 120 112 10/1/08 360 11/1/98 17,258.30 4,650,000 59.8
PW - 3886 120 112 10/1/08 300 11/1/98 20,509.97 5,150,000 53.9
PW - 3268 135 125 11/1/09 NAP 9/1/98 29,646.21 4,700,000 58.9
PW - 4355 240 231 9/1/18 240 10/1/98 22,883.02 3,800,000 72.5
PW - 6265 120 118 4/1/09 300 5/1/99 20,928.55 3,400,000 79.3
PW - 3265A 17,645.64 2,945,000
PW - 3265B 7,661.92 1,445,000
PW - 3265 180 169 7/1/13 180 8/1/98 25,307.56 4,390,000 60
PW - 1481 120 111 9/1/08 300 10/1/98 18,289.99 3,300,000 76.8
PW - 4345 120 112 10/1/08 300 11/1/98 17,909.42 3,400,000 72.9
PW - 3146 120 109 7/1/08 300 8/1/98 18,981.81 3,200,000 77.3
PW - 3821 120 110 8/1/08 276 9/1/98 18,903.86 4,000,000 60.5
PW - 3322 120 112 10/1/08 360 11/1/98 16,641.58 3,800,000 63.5
PW - 4629 120 112 10/1/08 360 11/1/98 16,945.79 3,200,000 74.6
PW - 2969 120 110 8/1/08 360 9/1/98 16,307.17 3,100,000 76.9
PW - 3615 240 230 8/1/18 240 9/1/98 18,492.10 4,100,000 57.4
PW - 7098 120 119 5/1/09 360 6/1/99 17,166.08 3,800,000 60.5
PW - 4467 120 113 11/1/08 300 12/1/98 17,303.88 3,400,000 67.6
PW - 2346 120 110 8/1/08 360 9/1/98 15,940.43 3,000,000 76.1
PW - 4048 240 231 9/1/18 240 10/1/98 18,109.03 3,250,000 69.6
PW - 3185 226 215 5/1/17 NAP 8/1/98 16,745.89 2,640,000 85.6
PW - 3736 120 112 10/1/08 300 11/1/98 15,680.87 2,850,000 79.2
PW - 2233 120 109 7/1/08 240 8/1/98 17,884.69 3,250,000 68.6
PW - 3714 120 112 10/1/08 300 11/1/98 16,125.48 3,000,000 73.5
PW - 5668 120 117 3/1/09 360 4/1/99 16,416.56 3,200,000 67.9
PW - 3035 240 228 6/1/18 240 7/1/98 18,265.00 2,950,000 73.1
PW - 5994A 3,041.67 520,000
PW - 5994B 5,439.91 930,000
PW - 5994C 7,369.36 1,260,000
PW - 5994 120 118 4/1/09 360 5/1/99 15,850.94 2,710,000 79.2
PW - 1623 120 110 8/1/08 300 9/1/98 15,291.90 3,000,000 70.8
PW - 3329 120 109 7/1/08 300 8/1/98 15,510.56 2,950,000 71.2
PW - 6314 120 118 4/1/09 360 5/1/99 14,842.01 3,000,000 69.9
PW - 4008 120 109 7/1/08 300 8/1/98 15,875.69 2,850,000 72.9
PW - 4112 120 112 10/1/08 360 11/1/98 13,173.85 2,800,000 72.7
PW - 4762 120 112 10/1/08 300 11/1/98 15,149.32 3,000,000 67.7
PW - 4674 120 111 9/1/08 360 10/1/98 12,905.56 2,500,000 79.4
PW - 3463 120 111 9/1/08 300 10/1/98 14,046.40 4,100,000 48.2
PW - 6021 120 118 4/1/09 300 5/1/99 15,698.26 3,500,000 54.2
PW - 4896 120 113 11/1/08 300 12/1/98 13,917.48 2,400,000 78.5
PW - 3666 240 229 7/1/18 240 8/1/98 15,633.21 2,500,000 74.6
PW - 6022 84 83 5/1/06 360 6/1/99 13,196.97 2,800,000 66.4
PW - 3901 120 110 8/1/08 360 9/1/98 12,482.72 2,800,000 64.2
PW - 3563A 2,776.27 550,000
PW - 3563B 3,597.54 650,000
PW - 3563C 1,624.70 425,000
PW - 3563D 8,293.09 1,350,000
PW - 3563 180 172 10/1/13 180 11/1/98 16,291.59 2,975,000 59.8
PW - 3709 120 110 8/1/08 240 9/1/98 14,877.18 2,600,000 68.1
PW - 4553 120 109 7/1/08 300 8/1/98 13,057.13 2,380,000 73.5
PW - 7313 120 119 5/1/09 360 6/1/99 12,898.76 2,700,000 63.9
PW - 1586 120 109 7/1/08 360 8/1/98 11,413.08 2,300,000 73.3
PW - 3466 120 111 9/1/08 300 10/1/98 12,740.31 6,000,000 28.1
PW - 1596 120 109 7/1/08 240 8/1/98 13,190.29 2,600,000 64
PW - 4153 180 171 9/1/13 180 10/1/98 14,382.34 3,220,000 49.7
PW - 5025 120 113 11/1/08 240 12/1/98 13,135.18 2,150,000 73.5
PW - 3286 120 109 7/1/08 300 8/1/98 11,513.42 2,150,000 73.5
PW - 1777 180 170 8/1/13 180 9/1/98 14,868.59 2,315,000 67
PW - 6112 84 83 5/1/06 360 6/1/99 11,427.42 2,850,000 54.4
PW - 6414 120 119 5/1/09 360 6/1/99 10,997.47 1,940,000 79.9
PW - 3686 120 113 11/1/08 240 12/1/98 13,321.64 2,300,000 66.7
PW - 2526 120 111 9/1/08 300 10/1/98 11,190.38 3,220,000 46.9
PW - 3076 120 109 7/1/08 300 8/1/98 11,441.11 2,125,000 70.7
PW - 5083 120 116 2/1/09 300 3/1/99 11,104.39 2,100,000 71.1
PW - 4678 120 117 3/1/09 180 4/1/99 13,735.25 3,480,000 42.7
PW - 3426 120 110 8/1/08 300 9/1/98 11,280.74 2,070,000 71.7
PW - 3893 240 232 10/1/18 240 11/1/98 11,882.92 1,930,000 76.6
PW - 2443 120 112 10/1/08 240 11/1/98 11,441.05 1,950,000 74.3
PW - 4991 120 114 12/1/08 360 1/1/99 10,818.24 1,880,000 76.3
PW - 3545A 7,495.02 1,260,000
PW - 3545B 2,855.25 600,000
PW - 3545 120 108 6/1/08 300 7/1/98 10,350.27 1,860,000 76.9
PW - 3616 180 171 9/1/13 240 10/1/98 11,285.39 3,600,000 39.6
PW - 3968 60 50 8/1/03 360 9/1/98 9,817.78 1,880,000 74
PW - 2509 120 109 7/1/08 300 8/1/98 9,681.60 2,100,000 65.8
PW - 3807 240 231 9/1/18 240 10/1/98 10,887.82 1,900,000 72.4
PW - 6377 120 118 4/1/09 300 5/1/99 10,902.66 1,850,000 73.9
PW - 3970 120 110 8/1/08 360 9/1/98 9,347.13 1,800,000 74.5
PW - 3093 300 291 9/1/23 300 10/1/98 9,879.99 1,900,000 70.3
PW - 3031 120 109 7/1/08 300 8/1/98 9,932.52 1,900,000 70.2
PW - 3687 120 113 11/1/08 240 12/1/98 10,841.38 2,075,000 61.9
PW - 2799 120 108 6/1/08 300 7/1/98 9,674.63 2,600,000 49.4
PW - 7134A 6,235.81 1,050,000
PW - 7134B 3,451.70 570,000
PW - 7134 120 118 4/1/09 300 5/1/99 9,687.51 1,620,000 78.7
PW - 7133 120 118 4/1/09 300 5/1/99 9,588.89 1,575,000 80.1
PW - 3570 240 231 9/1/18 240 10/1/98 10,302.52 1,700,000 73.8
PW - 3176 120 111 9/1/08 360 10/1/98 8,400.40 1,675,000 74.1
PW - 4546 120 115 1/1/09 300 2/1/99 9,341.43 1,600,000 74.6
PW - 7021 120 118 4/1/09 300 5/1/99 9,065.44 1,535,000 77.7
PW - 3214 120 109 7/1/08 360 8/1/98 8,497.65 1,645,000 72.4
PW - 4426 120 113 11/1/08 300 12/1/98 8,751.14 1,750,000 68
PW - 4897 120 113 11/1/08 240 12/1/98 10,149.59 1,900,000 62.4
PW - 2903 120 109 7/1/08 300 8/1/98 8,883.51 1,570,000 75.5
PW - 2495 180 171 9/1/13 180 10/1/98 10,961.12 1,600,000 72.9
PW - 3618 180 171 9/1/13 180 10/1/98 10,853.14 2,600,000 44.9
PW - 1445 120 109 7/1/08 240 8/1/98 9,131.18 1,500,000 75.1
PW - 4309 120 114 12/1/08 300 1/1/99 7,634.79 2,700,000 40.4
PW - 4038 120 111 9/1/08 360 10/1/98 7,227.06 1,400,000 74.5
PW - 4614 240 233 11/1/18 240 12/1/98 8,218.65 2,000,000 50
PW - 3619 180 171 9/1/13 180 10/1/98 9,016.26 5,500,000 17.7
PW - 4371 120 109 7/1/08 300 8/1/98 6,989.55 1,300,000 72.2
PW - 5254 120 114 12/1/08 360 1/1/99 6,824.77 1,200,000 74.7
PW - 3515 120 109 7/1/08 300 8/1/98 6,231.75 1,250,000 67.2
PW - 1663 120 110 8/1/08 300 9/1/98 5,638.93 1,000,000 79
PW - 5947 120 119 5/1/09 360 6/1/99 5,626.08 1,000,000 72.5
<PAGE>
<CAPTION>
LOAN UNDERWRITING SERVICING FEE EXCESS INTEREST ACCRUAL IDOT CTL AND / OR
ID DSCR RATE YIELD RATE METHOD DEFEASED LOAN LOAN LEASE ENHANCEMENT POLICY
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
PW - 4817 1.65x 0.07% 0.04% Actual/360 Yes Yes No
PW - 4818 1.45 0.0735 0.035 Actual/360 Yes Yes No
PW - 3825 1 0.0735 0.035 30/360 Yes Yes Yes
PW - 4819 1.32 0.0735 0.035 Actual/360 Yes Yes No
PW - 7371 1.23 0.0735 0.035 Actual/360 Yes No
PW - 6093 1.2 0.0735 0.035 Actual/360 Yes No
PW - 7215 1.22 0.0735 0.035 Actual/360 Yes No
PW - 1696 1.06 0.0735 0.035 30/360 Yes Yes Yes
PW - 3346 1.22 0.0735 0.035 Actual/360 Yes No
PW - 3879 1.02 0.0735 0.035 Actual/360 Yes Yes Yes
PW - 7009 1.2 0.0735 0.035 Actual/360 Yes No
PW - 3000 1.7 0.0735 0.035 Actual/360 Yes No
PW - 6542 1.27 0.0735 0.035 Actual/360 Yes No
PW - 4035 1.26 0.0735 0.035 Actual/360 Yes No
PW - 2034 1.93 0.0735 0.035 Actual/360 Yes No
PW - 6543 1.25 0.0735 0.035 Actual/360 Yes No
PW - 5651 1.47 0.0735 0.035 Actual/360 Yes No
PW - 4747 1.39 0.0735 0.035 Actual/360 Yes No
PW - 2365 1.63 0.0735 0.035 Actual/360 Yes No
PW - 4139 1.3 0.0735 0.035 Actual/360 Yes No
PW - 4149 1.2 0.0735 0.035 Actual/360 Yes No
PW - 3766 1.42 0.0735 0.035 Actual/360 Yes No
PW - 2804 1 0.0735 0.035 Actual/360 Yes Yes Yes
PW - 6545 1.25 0.0735 0.035 Actual/360 Yes No
PW - 4151A 0.0735 0.035 Yes No
PW - 4151B 0.0735 0.035 Yes No
PW - 4151 2.66 Actual/360
PW - 1890 1.35 0.0735 0.035 Actual/360 Yes No
PW - 2005 1.52 0.0735 0.035 Actual/360 Yes No
PW - 4370 1.43 0.0735 0.035 Actual/360 Yes No
PW - 2982A
PW - 2982B
PW - 2982C
PW - 2982D
PW - 2982E
PW - 2982F
PW - 2982 1.29 0.0735 0.035 Actual/360 Yes No
PW - 4923 1.76 0.0735 0.035 Actual/360 Yes No
PW - 3441 1.44 0.0735 0.035 Actual/360 Yes No
PW - 4975 1.27 0.0735 0.035 Actual/360 Yes No
PW - 6460 1.55 0.0735 0.035 Actual/360 Yes No
PW - 3471 1.27 0.0735 0.035 Actual/360 Yes No
PW - 2550 1.6 0.0735 0.035 Actual/360 Yes No
PW - 3397 1.81 0.0735 0.035 Actual/360 Yes No
PW - 3086 1.85 0.0735 0.035 Actual/360 Yes No
PW - 6024 1.27 0.0735 0.035 Actual/360 Yes No
PW - 6544 1.26 0.0735 0.035 Actual/360 Yes No
PW - 4047 1.2 0.0735 0.035 Actual/360 Yes No
PW - 2348 2.38 0.0735 0.035 Actual/360 Yes No
PW - 3189 1.35 0.0735 0.035 Actual/360 Yes No
PW - 6023 1.55 0.0735 0.035 Actual/360 Yes No
PW - 4479 1.66 0.0735 0.035 Actual/360 Yes No
PW - 4319 1.52 0.0735 0.035 Actual/360 Yes No
PW - 6025 1.31 0.0735 0.035 Actual/360 Yes No
PW - 2358 1.6 0.0735 0.035 Actual/360 Yes No
PW - 2064 1.33 0.0735 0.035 Actual/360 Yes No
PW - 6329 1.22 0.0735 0.035 Actual/360 Yes No
PW - 4709 1.54 0.0735 0.035 Actual/360 Yes No
PW - 4625 1.66 0.0735 0.035 Actual/360 Yes No
PW - 3886 1.53 0.0735 0.035 Actual/360 Yes No
PW - 3268 1.07 0.0735 0.035 Actual/360 Yes Yes Yes
PW - 4355 1.68 0.0735 0.035 Actual/360 Yes No
PW - 6265 1.36 0.0735 0.035 Actual/360 Yes No
PW - 3265A
PW - 3265B
PW - 3265 1.59 0.0735 0.035 Actual/360 Yes No
PW - 1481 1.22 0.0735 0.035 Actual/360 Yes No
PW - 4345 1.62 0.0735 0.035 Actual/360 Yes No
PW - 3146 1.78 0.0735 0.035 Actual/360 Yes No
PW - 3821 1.61 0.0735 0.035 Actual/360 Yes No
PW - 3322 1.31 0.0735 0.035 Actual/360 Yes No
PW - 4629 1.38 0.0735 0.035 Actual/360 Yes No
PW - 2969 1.37 0.0735 0.035 Actual/360 Yes No
PW - 3615 1.61x 0.0735 0.035 Actual/360 Yes No
PW - 7098 1.54 0.0735 0.035 Actual/360 Yes No
PW - 4467 2.67 0.0735 0.035 Actual/360 No No
PW - 2346 1.39 0.0735 0.035 Actual/360 Yes No
PW - 4048 1.22 0.0735 0.035 Actual/360 Yes No
PW - 3185 1.08 0.0735 0.035 Actual/360 Yes Yes Yes
PW - 3736 1.25 0.0735 0.035 Actual/360 Yes No
PW - 2233 1.32 0.0735 0.035 Actual/360 No No
PW - 3714 1.46 0.0735 0.035 Actual/360 Yes No
PW - 5668 1.35 0.0735 0.035 Actual/360 Yes No
PW - 3035 1.34 0.0735 0.035 Actual/360 Yes No
PW - 5994A
PW - 5994B
PW - 5994C
PW - 5994 1.21 0.0735 0.035 Actual/360 Yes No
PW - 1623 1.58 0.0735 0.035 Actual/360 Yes No
PW - 3329 1.38 0.0735 0.035 Actual/360 Yes No
PW - 6314 1.36 0.0735 0.035 Actual/360 Yes No
PW - 4008 1.65 0.0735 0.035 Actual/360 No No
PW - 4112 1.33 0.0735 0.035 Actual/360 Yes No
PW - 4762 1.65 0.0735 0.035 Actual/360 Yes No
PW - 4674 1.44 0.0735 0.035 Actual/360 Yes No
PW - 3463 2.05 0.0735 0.035 Actual/360 Yes No
PW - 6021 1.63 0.0735 0.035 Actual/360 Yes No
PW - 4896 1.25 0.0735 0.035 Actual/360 Yes No
PW - 3666 1.4 0.0735 0.035 Actual/360 Yes No
PW - 6022 1.48 0.0735 0.035 Actual/360 Yes No
PW - 3901 1.47 0.0735 0.035 Actual/360 No No
PW - 3563A
PW - 3563B
PW - 3563C
PW - 3563D
PW - 3563 1.25 0.0735 0.035 Actual/360 Yes No
PW - 3709 1.82 0.0735 0.035 Actual/360 Yes No
PW - 4553 1.97 0.0735 0.035 Actual/360 Yes No
PW - 7313 1.37 0.0735 0.035 Actual/360 Yes No
PW - 1586 1.4 0.0735 0.035 Actual/360 Yes No
PW - 3466 3.07 0.0735 0.035 Actual/360 Yes No
PW - 1596 1.38 0.0735 0.035 Actual/360 Yes No
PW - 4153 1.88 0.0735 0.035 Actual/360 Yes No
PW - 5025 1.47 0.0735 0.035 Actual/360 Yes No
PW - 3286 1.35 0.0735 0.035 Actual/360 Yes No
PW - 1777 1.67 0.0735 0.035 Actual/360 Yes No
PW - 6112 1.63 0.0735 0.035 Actual/360 Yes No
PW - 6414 1.51 0.0735 0.035 Actual/360 Yes No
PW - 3686 1.95 0.0735 0.035 Actual/360 Yes No
PW - 2526 1.49 0.0735 0.035 Actual/360 Yes No
PW - 3076 1.59 0.0735 0.035 Actual/360 Yes No
PW - 5083 1.24 0.0735 0.035 Actual/360 Yes No
PW - 4678 1.67 0.0735 0.035 Actual/360 Yes No
PW - 3426 1.48 0.0735 0.035 Actual/360 Yes No
PW - 3893 1.5 0.0735 0.035 Actual/360 Yes No
PW - 2443 1.33 0.0735 0.035 Actual/360 Yes No
PW - 4991 1.25 0.0735 0.035 Actual/360 Yes No
PW - 3545A
PW - 3545B
PW - 3545 1.6 0.0735 0.035 Actual/360 Yes No
PW - 3616 2.21 0.0735 0.035 Actual/360 Yes No
PW - 3968 1.3 0.0735 0.035 Actual/360 No No
PW - 2509 1.58 0.0735 0.035 Actual/360 Yes No
PW - 3807 1.2 0.0735 0.035 Actual/360 Yes No
PW - 6377 1.32 0.0735 0.035 Actual/360 Yes No
PW - 3970 1.49 0.0735 0.035 Actual/360 Yes No
PW - 3093 1.43 0.0735 0.035 Actual/360 Yes No
PW - 3031 1.67 0.0735 0.035 Actual/360 Yes No
PW - 3687 2.16 0.0735 0.035 Actual/360 Yes No
PW - 2799 1.73 0.0735 0.035 Actual/360 Yes No
PW - 7134A
PW - 7134B
PW - 7134 1.28 0.0735 0.035 Actual/360 Yes No
PW - 7133 1.27 0.0735 0.035 Actual/360 Yes No
PW - 3570 1.75 0.0735 0.035 Actual/360 Yes No
PW - 3176 1.56 0.0735 0.035 Actual/360 Yes No
PW - 4546 1.31 0.0735 0.035 Actual/360 Yes No
PW - 7021 1.27 0.0735 0.035 Actual/360 Yes No
PW - 3214 1.39 0.0735 0.035 Actual/360 Yes No
PW - 4426 1.51 0.0735 0.035 Actual/360 Yes No
PW - 4897 1.55 0.0735 0.035 Actual/360 Yes No
PW - 2903 1.25 0.0735 0.035 Actual/360 Yes No
PW - 2495 1.24 0.0735 0.035 Actual/360 Yes No
PW - 3618 1.57 0.0735 0.035 Actual/360 Yes No
PW - 1445 1.28 0.0735 0.035 Actual/360 Yes No
PW - 4309 2.78 0.0735 0.035 Actual/360 Yes No
PW - 4038 1.4 0.0735 0.035 Actual/360 Yes No
PW - 4614 1.89 0.0735 0.035 Actual/360 Yes No
PW - 3619 4.01 0.0735 0.035 Actual/360 Yes No
PW - 4371 1.53 0.0735 0.035 Actual/360 Yes No
PW - 5254 1.29 0.0735 0.035 Actual/360 Yes No
PW - 3515 1.42 0.0735 0.035 Actual/360 Yes No
PW - 1663 1.48 0.0735 0.035 Actual/360 Yes No
PW - 5947 1.4 0.0735 0.035 Actual/360 Yes No
</TABLE>
<PAGE>
EXHIBIT B
OFFICER'S CERTIFICATE OF PAINE WEBBER REAL ESTATE SECURITIES INC.
In connection with the sale, assignment and transfer of certain
mortgage loans (collectively, the "Mortgage Loans") by Paine Webber Real Estate
Securities Inc. (the "Mortgage Loan Seller") to PaineWebber Mortgage Acceptance
Corporation V (the "Purchaser") pursuant to the Mortgage Loan Sale Agreement
dated as of _____, 1999 (the "Mortgage Loan Sale Agreement") between the
Mortgage Loan Seller and the Purchaser, the Mortgage Loan Seller hereby
certifies that:
(a) The representations and warranties of the Mortgage Loan Seller
contained in the Mortgage Loan Sale Agreement are true and correct in all
material respects at and as of the date hereof with the same effect as if
made on the date hereof.
(b) The Mortgage Loan Seller has complied with the terms of the Mortgage
Loan Sale Agreement and satisfied all the conditions on its part required
under the Mortgage Loan Sale Agreement to be performed or satisfied at a
prior date hereof.
In WITNESS WHEREOF, the Mortgage Loan Seller has caused this
Certificate to be duly executed and delivered as of the 7th day of June 1999.
PAINE WEBBER REAL ESTATE SECURITIES INC.
By: __________________________
Name:
Title:
B-1
<PAGE>
EXHIBIT C
[Letterhead of Paine Webber Real Estate Securities Inc.]
June 7, 1999
Addressees Listed on Schedule A
Re: Mortgage Loan Purchase and Sale Agreement dated as of June 1, 1999
between PaineWebber Mortgage Acceptance Corporation V and Paine Webber
Real Estate Securities Inc. (the "Agreement")
Ladies and Gentlemen:
I am the counsel to Paine Webber Real Estate Securities Inc., a
Delaware corporation (the "Company"), and, in such capacity, I am familiar with
the affairs of the Company.
I am providing this opinion in connection with the sale by the Company
to PaineWebber Mortgage Acceptance Corporation V of various commercial and
multi-family mortgage loans. This opinion is furnished to you pursuant to
Section 4.1(b)(iv) of the Mortgage Loan Purchase and Sale Agreement (the
"Agreement"). Terms used herein, but not otherwise defined herein, shall have
the meanings ascribed to them in the Agreement.
I have examined copies of the Agreement, the Certificate of
Incorporation of the Company and the By-Laws of the Company. I also have
examined such agreements, certificates of officers and representatives of the
Company and others, and other documents, papers, statutes and authorities as I
have deemed necessary to form the basis of the opinions hereinafter expressed.
In such examinations, I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals and the conformity to
original documents of copies of documents supplied to me. As to certain matters
of fact relevant to the opinions hereinafter compressed, I have relied solely
upon statements and certificates of the officers of the Company and others. I
have also assumed (other than with respect to the Company) that all documents,
agreements and instruments have been duly authorized, executed and delivered by
all parties thereto, that all such parties had the power and legal right to
execute and deliver all such documents, agreements and instruments, and that
such documents, agreements and instruments are valid, binding and enforceable
obligations of such parties.
I am admitted to the Bar of the State of ______, and I express no
opinion as to any laws other than the laws of the United States, the State of
New York and the General Corporation Law of the State of Delaware.
Based on the foregoing, I am of the opinion that:
C-1
<PAGE>
1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
is duly qualified as a [foreign] corporation in good standing in the
State of New York, with full corporate power and authority to own its
assets and conduct its business, to execute, deliver and perform the
Agreement and all the transactions contemplated thereby, including but
not limited to, the power and authority to sell, assign and retransfer
the Mortgage Loans in accordance with the Agreement and the Company has
taken all necessary action to authorize the execution, delivery and
performance of the Agreement by it, and the Agreement has been duly
authorized, executed and delivered by it.
2. The Agreement and all of the obligations of the Company
under the Agreement are valid, legal and binding obligations of the
Company enforceable against the Company in accordance with the terms of
the Agreement, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally, 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,
statutes or court decisions to the effect that such public policy
considerations statutes or court decisions limit the enforceability of
the provisions of the Agreement relating to the rights to indemnity and
contribution.
3. The execution and delivery of the Agreement by the Company
and the performance of its obligations under the Agreement will not
conflict with any provision of any law or regulation to which the
Company is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions
of any of the Company's organizational documents or, to my knowledge,
any agreement or instrument to which the Company is a party or by which
it is bound, or any order or decree applicable to the Company, result
in the creation or imposition of any lien on any of the Company's
assets or property, in each case which would materially and adversely
affect the ability of the Company to carry out the transactions
contemplated by the Agreement.
4. To my knowledge, there is no action, suit, proceeding or
investigation pending or threatened in writing against the Company in
any court or by or before any other government agency or
instrumentality which would materially and adversely affect the
validity of the Mortgage Loans or the ability of the Company to carry
out the transactions contemplated by the Agreement.
5. To my knowledge, the Company 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 Company or its
properties or might have consequences that would materially and
adversely affect its performance under the Agreement.
6. To my knowledge, no consent, approval, authorization or
order of any court or governmental agency or body is required for the
execution, delivery and
<PAGE>
performance by the Company or compliance by the Company with the
Agreement or the consummation of the transactions contemplated by the
Agreement, other than those which have been obtained by the Company.
This opinion is furnished solely for the benefit of the addressees
hereof in connection with the transaction referred to herein. This letter may
not be relied upon, used, quoted, circulated or otherwise referred to by any
other person or for any other purpose without my prior written approval. This
opinion is being given as of the date first written above and I express no
opinion as to events or conditions subsequent to such date.
Very truly yours,
C-3
<PAGE>
Schedule A
Paine Webber Real Estate Securities Inc.
1285 Avenue of the Americas
19th Floor
New York, New York 10019
Banc One Mortgage Capital Markets, LLC
1717 Main Street, 14th Floor
Dallas, Texas 75201
PaineWebber Mortgage Acceptance Corporation V
1285 Avenue of the Americas
19th Floor
New York, New York 10019
PaineWebber Incorporated
1285 Avenue of the Americas
19th Floor
New York, New York 10019
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
New York, New York 10281
Fitch IBCA, Inc.
One State Street Plaza
New York, New York 10004
Moody's Investor Services
99 Church Street, 10th Floor
New York, New York 10007
LaSalle Bank National Association
135 South LaSalle Street
Suite 1625
Chicago, Illinois 60603
ABN Amro Bank N.V.
135 South LaSalle Street
Chicago, Illinois 60603
C-4
<PAGE>
EXHIBIT D
EXHIBIT D
---------
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES WITH RESPECT TO
------------------------------------------------------------
EACH MORTGAGE LOAN
------------------
The following are exceptions to the representations and warranties made
by the Mortgage Loan Seller with respect to each Mortgage Loan as set forth in
Section 3.2(b) of this Agreement. The item number indicates the subsection
number where such representation or warranty appears in Section 3.2(b) of this
Agreement.
(xiv) Existing Indebtedness
Mortgage Loan Nos. PW-3076, PW-3466, PW-5668 permit the related
Borrower to maintain subordinate financing secured by a lien on an interest in
the related Mortgaged Property that was in existence on the date of origination
of the related Mortgage Loan. Each lender of such subordinate indebtedness has
entered into a subordination and standstill agreement. The amount of the
subordinate debt for each such Mortgage Loan is as follows:
---------------------------------------------------------------------
LOAN NO. PROPERTY NAME SUBORDINATED DEBT SECURED AMOUNT
---------------------------------------------------------------------
PW-3076 Travelodge South $175,000
---------------------------------------------------------------------
PW-3466 Adobe Inn $3,502,593
---------------------------------------------------------------------
PW-5668 9000 Professional Center $1,300,000
---------------------------------------------------------------------
(xv) No Additional Indebtedness.
Mortgage Loan No. PW-4035 permits the related Borrower to incur future
indebtedness secured by a subordinate lien on the related Mortgaged Property
subject to the following conditions: (a) the gross amount of such subordinate
indebtedness does not exceed $1,000,000, (b) the aggregate debt service payments
due under the subordinate debt and this Mortgage Loan does not exceed a minimum
DSCR of 1.25:1, (c) the aggregate LTV does not exceed 80%, (d) the intercreditor
agreement grants the Mortgage Loan Seller a priority lien and prohibits the
future lender from taking any enforcement action without the consent of the
Mortgage Loan Seller and (e) there is no event of default.
Mortgage Loan No. PW-3766 permits the related Borrower to maintain
subordinate financing that is not secured by the related Mortgaged Property and
that is an amount not in excess of $500,000 in each case. The subordinate debt
is unconditionally subordinate to the related Mortgage Loan until one year after
the Mortgage Loan has been fully satisfied.
(xxix) Recorded Instruments.
D-1
<PAGE>
With respect to Mortgage Loan Nos. PW-4817, PW-4818, PW-4819, the
recording taxes are not paid because of utilization of the Indemnification Deed
of Trust structure.
(xlvii) Additional Insurance.
The following table sets forth the Mortgage Loans which did not have
insurers which were rated at least "A:X" by AM Best or "A" by Standard & Poor's
Rating Services. In some cases, only one insurer (either the insurer for the
liability coverage or the one for property coverage) for the Mortgage Loan was
not rated adequately.
- ----------------------------------------------------------------------------
Loan No. Property Insurance Liability Insurance
- ----------------------------------------------------------------------------
AM Best S & P AM Best S & P
- ----------------------------------------------------------------------------
PW-4371 AVIII Bbpi A:IX A-
- ----------------------------------------------------------------------------
(li) Credit Tenant Loans.
(A) & (O) With respect to Mortgage Loan Nos. PW-2804, PW-3185,
PW-3825, and PW-3879, there is a balloon payment due at maturity of the related
Credit Lease; provided, however, that the Borrower has obtained and is obligated
to maintain a residual value insurance policy with respect to each such Credit
Lease. The residual value insurance policy covering Mortgage Loan Nos. PW-2804
and PW-3185 is provided by R.V.I. American Insurance Company, which has a claims
paying ability rating of A by each of Standard & Poor's Ratings Services and
Fitch IBCA, Inc. The residual value insurance policy covering Mortgage Loan Nos.
PW-3825 and PW-3879 is provided by Financial Structures Limited, which has a
claims paying ability rating of AA- by Standard and Poor's and an insurer
financial strength rating of Aa3 by Moody's Investors Services.
(C) With respect to Mortgage Loan Nos. PW-1696, PW-2804,
PW-3185, PW-3268, and PW-3879, the Borrower has certain obligations under the
Credit Tenant Lease.
(D) With respect to Mortgage Loan Nos. PW-1696, PW-3185 and
PW-3268, the Tenant on the Credit Lease has rental abatement rights.
(K) With respect to Mortgage Loan Nos. PW-1696 and PW-3268,
the representation is true and correct except that the Tenant on the Credit
Lease is not in occupancy of the Mortgaged Property.
(lvi) Mortgage Loans Not Originated by Mortgage Loan Seller.
With respect to one Mortgage Loan (C-2550 Days Inn Eastgate):
D-2
<PAGE>
(B) the Mortgage Loan Seller acquired the Mortgage Loan from
Aries Capital Incorporated ("Aries"), with which the Mortgage Loan Seller has an
on-going, standing relationship. To the Mortgage Loan Seller's knowledge, Aries
originated the Mortgage Loan and initially assigned the Mortgage Loan at the
time of closing to Smith Barney Mortgage Capital Group, Inc., which had provided
the initial funding for the Mortgage Loan. To the Mortgage Loan Seller's
knowledge, Smith Barney Mortgage Capital Group, Inc. subsequently re-assigned
the Mortgage Loan to Aries. Aries, in turn, assigned the Mortgage Loan to the
Mortgage Loan Seller;
(D) the Mortgage Loan was originated by Aries Capital
Incorporated ("Aries"), with which the Mortgage Loan Seller has an on-going,
standing relationship. Notwithstanding the foregoing, and to the Mortgage Loan
Seller's knowledge, the Mortgage Loan was initially funded at the time of
closing by Smith Barney Mortgage Capital Group, Inc., to which the Mortgage Loan
was initially assigned at closing by Aries. The Mortgage Loan Seller
subsequently funded the purchase of the Mortgage Loan from Aries. The funds were
disbursed in accordance with the loan sale agreement by and between the Mortgage
Loan Seller and Aries, an escrow instruction letter and settlement statement,
which provided, in part, for the purchase price of the Mortgage Loan to be
disbursed to Smith Barney Mortgage Capital Group, Inc. (less outstanding
payments due under the Mortgage Loan Documents), and included an additional
advance to be made to the borrower pursuant to an "earn-out" provision contained
in the Mortgage Loan Documents.
D-3
<PAGE>
EXHIBIT E
List of Credit Tenant Loans, Residual Value and Lease Enhancement
-----------------------------------------------------------------
Policies and Bondable Leases
----------------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
LESSEE/GUARANTOR LEASE TYPE LEASED
RATINGS (S&P /MOODYS) (BONDABLE, CUT OFF APPRAISED
LOAN ID PROPERTY NAME/LOCATION PROPERTY TYPE CASUALTY/CONDEMNAT BALANCE VALUE
ONLY, NNN, NN)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
1696 Kmart - Ponce - Ponce, PR BB+/Bal CTL - retail NN 8,664,604.07 9,500,000
- ------------------------------------------------------------------------------------------------------------------------------------
3268 Tandy - East Hanover - East A-/Baal CTL - retail NN 2,769,932.10 4,700,000
Hanover, NJ
- ------------------------------------------------------------------------------------------------------------------------------------
3825 BEckman Coulter, Inc. - Chaska MN BB+/Bal CTL - mixed use Bondable 14,875,023.74 15,400,000
- ------------------------------------------------------------------------------------------------------------------------------------
2804 Laidlaw Transit, Inc. - Las Vegas, Shadow Rated* CTL - office NN 4,742,905.11 5,210,000
NV
- ------------------------------------------------------------------------------------------------------------------------------------
3879 Regal Cinemas, Inc., - BB-/Ba3** CTL - retail NN 7,911,958.72 8,200,000
Fredericksburg, VA
- ------------------------------------------------------------------------------------------------------------------------------------
3185 Eckerd - Palm Beach - Palm Beach, NR/Baa2(Sr. CTL - retai l NN 2,259,986.77 2,640,000
FL Subordinate)
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
*Shadow ratings are not necessarily by S&P or Moodys
- ------------------------------------------------------------------------------------------------------------------------------------
**S&P's rating of Regal Cinemas is an issuer credit rating. Moodys' rating of Regal Cinemas is a senior
implied issuer rating
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
E-1
<PAGE>
SCHEDULE I
SCHEDULE I
----------
List of Agreements under which the Mortgage Loan Seller
acquired rights in the Mortgage Loans as provided in
Section 3.7 of this Agreement
Mortgage Loan Purchase Agreement dated as of September 11, 1997 by and between
ValuExpress II, Inc. and Paine Webber Real Estate Securities Inc.
Mortgage Loan Purchase Agreement dated August, 1998, by and between ARIES
Capital Incorporated and Paine Webber Real Estate Securities Inc.
Mortgage Loan Purchase Agreement dated as of April 24, 1998 by and between Paine
Webber Real Estate Securities Inc. and SPARKS Financial Group, Inc.
Mortgage Loan Purchase Agreement dated as of January 28, 1999, by and between
HSA/Wexford Banc Group, LLC and Paine Webber Real Estate Securities Inc.
Mortgage Loan Purchase Agreement dated as of July 28, 1998, by and between Paine
Webber Real Estate Securities Inc. and IPI Commercial Corp.
Mortgage Loan Purchase Agreement dated as of December 11, 1998 by and between
Paine Webber Real Estate Securities Inc. and Standard Mortgage Corporation.
Mortgage Loan Purchase Agreement dated as of June 26, 1998, by and between Paine
Webber Real Estate Securities Inc. and WordCook Inc.
Mortgage Loan Purchase Agreement dated as of July 1, 1998, by and between
Suburban Capital Markets, Inc. and Paine Webber Real Estate Securities Inc.
<PAGE>
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AND SALE AGREEMENT (this
"Agreement") dated as of June 1, 1999, is between PaineWebber Mortgage
Acceptance Corporation V, a Delaware corporation (the "Purchaser"), and Merrill
Lynch Mortgage Capital Inc., a Delaware Corporation (the "Mortgage Loan
Seller").
The Mortgage Loan Seller intends to sell, assign and transfer
to the Purchaser, subject to the terms and conditions set forth below, certain
mortgage loans (the "Mortgage Loans"), which are described in, and set forth in,
the mortgage loan schedule (the "Mortgage Loan Schedule") attached hereto as
Exhibit A.
The Purchaser intends to deposit the Mortgage Loans into a
trust fund (the "Trust Fund"), beneficial ownership of which will be evidenced
by a series of mortgage pass-through certificates (the "Certificates"). The
Trust Fund will be created and the Certificates will be issued pursuant to the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") dated as
of June 1, 1999, by and among PaineWebber Mortgage Acceptance Corporation V, as
depositor (the "Depositor"), Banc One Mortgage Capital Markets, LLC, as servicer
(the "Servicer"), Banc One Mortgage Capital Markets, LLC, as special servicer
(the "Special Servicer"), LaSalle Bank National Association, as trustee (in such
capacity, the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal
Agent"). The Purchaser intends to sell certain of the Certificates (the
"Privately Placed Certificates") in a private placement pursuant to Section 4(2)
of the Securities Act of 1933 (the "Securities Act") through PaineWebber
Incorporated and Merrill Lynch, Pierce, Fenner & Smith Incorporated (in such
capacity, the "Placement Agents") on the Closing Date (defined below) pursuant
to a Certificate Purchase Agreement (the "Certificate Purchase Agreement") dated
as of June 1, 1999. The Purchaser intends to sell certain of the Certificates
(the "Publicly Offered Certificates") to PaineWebber Incorporated and Merrill
Lynch, Pierce, Fenner & Smith Incorporated (in such capacity, the
"Underwriters") on the Closing Date pursuant to an underwriting agreement (the
"Underwriting Agreement") dated as of June 1, 1999. The transactions
contemplated by the Pooling and Servicing Agreement are sometimes referred to
herein as the "Securitization Transaction." Capitalized terms used but not
otherwise defined herein shall have the respective meanings ascribed to such
terms in the Pooling and Servicing Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals,
which are incorporated into the operative provisions of this Agreement by this
reference, and for other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, the parties hereto
hereby agree as follows:
1
<PAGE>
ARTICLE I.
DEFINITIONS
"Allocable Share": A fraction, the numerator of which is the stated
principal balance of the Mortgage Loans and the denominator is the sum of (i)
the stated principal balance of the Mortgage Loans and (ii) the stated principal
balance of the mortgage loans sold to the Purchaser by Paine Webber Real Estate
Securities Inc. pursuant to the PW Mortgage Loan Purchase and Sale Agreement, or
as otherwise separately agreed upon in writing by the Purchaser, the Mortgage
Loan Seller and Paine Webber Real Estate Securities Inc.
"Bondable Lease": The bondable lease identified in Exhibit F attached
hereto.
"Breach": The meaning ascribed to such term in Section 3.3.
"Closing Date": June 7, 1999.
"Credit Lease": A lease of real property on a long-term net-lease basis
to a Tenant whose long-term unsecured debt rating (or the long-term unsecured
debt rating of the guarantor of its obligations under the related lease) is the
basis on which the related Mortgage Loan Seller underwrote the related Mortgage
Loan.
"Credit Tenant Loan": Any Mortgage Loan that is secured by a Mortgage
on a Mortgaged Property that is leased on a long-term net-lease basis to a
Tenant whose long-term unsecured debt rating (or the long-term unsecured debt
rating of the guarantor of its obligations under the related lease) is the basis
on which the related Mortgage Loan Seller underwrote the related Mortgage Loan.
"Credit Tenant Property": A Mortgaged Property that is leased to one or
more Tenants pursuant to one or more Credit Leases.
"Cut-off Date": June 1, 1999.
"Defective Document Mortgage Loan": The meaning ascribed to such term
in Section 3.3(b).
"Earn-out Loan": A Mortgage Loan identified in Exhibit E attached
hereto.
"Initial Pool Balance": An amount equal to approximately $704,764,603.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust or other instrument securing a Mortgage Note and creating a lien on the
fee or leasehold interest in the related Mortgaged Property.
"Mortgage File": The meaning ascribed to such term in Section 2.4(a).
"Mortgage Loan": Each of the mortgage loans transferred and assigned to
the Purchaser pursuant to Section 2.03 of this Agreement. As used herein, the
term "Mortgage Loan" includes
2
<PAGE>
each related Mortgage Note, the related Mortgage and other documents contained
in the related Mortgage File and any related agreements.
"Mortgage Loan Document": Each related Mortgage Note, Mortgage,
Assignment of Leases (if any) and other agreements executed in connection with
such Mortgage Loan, collectively, the "Mortgage Loan Documents."
"Mortgage Note": Each of the original executed notes evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"Mortgaged Property": The real property subject to the lien of a Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that owns or has acquired the related Mortgaged
Property and/or assumed the obligations of the original obligor under the
Mortgage Note.
"PW Mortgage Loan Purchase and Sale Agreement": That certain mortgage
loan purchase and sale agreement, dated as of even date hereof, by and between
Paine Webber Real Estate Securities Inc., as mortgage loan seller, and the
Purchaser.
"Policies": The meaning ascribed to such term in Section 3.2(b)(lii).
"Prospectus Supplement": That certain prospectus supplement, dated June
1, 1999, related to the Publicly Offered Certificates.
"Reimbursement Rate": The rate per annum applicable to the accrual of
interest on Servicing Advances and P&I Advances in accordance with the Pooling
and Servicing Agreement, which rate per annum shall equal the "Prime Rate"
published in the "Money Rates" section of "The Wall Street Journal" (or, if such
section or publication is no longer available, such other comparable publication
as determined by the Trustee in its reasonable discretion) as may be in effect
from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Trustee in its reasonable discretion) as
may be in effect from time to time.
"Repurchase Price": With respect to any Mortgage Loan or REO Loan
required to be purchased pursuant to Section 3.3, an amount equal to the sum of:
(i) the outstanding principal balance of such Mortgage Loan as
of the date of purchase;
(ii) all accrued and unpaid interest to but not including the
Due Date in the Due Period during which such Mortgage Loan or REO Loan
was purchased;
(iii) all related unreimbursed Servicing Advances and accrued
and unpaid interest on related Advances at the Reimbursement Rate and
unpaid Special Servicing Fees allocable to such Mortgage Loan; plus
3
<PAGE>
(iv) all reasonable out-of-pocket expenses reasonably incurred
or to be incurred by the Servicer, the Special Servicer, the Depositor
or the Trustee in respect of the Breach or defect giving rise to the
repurchase obligation, including any expenses arising out of the
enforcement of the repurchase obligation.
"Tenant": A tenant of a Credit Tenant Property.
[End of Article I]
4
<PAGE>
ARTICLE II.
PURCHASE, SALE AND CONVEYANCE OF MORTGAGE LOANS
2.1. Agreement to Sell Mortgage Loans. (a) Subject to the
terms and conditions of this Agreement, the Mortgage Loan Seller agrees to sell,
and the Purchaser agrees to purchase, the Mortgage Loans on the Closing Date;
provided, however, that the Purchaser shall not be obligated to purchase any
Mortgage Loan which fails to satisfy the representations and warranties set
forth in Section 3.1 hereof.
(b) The closing for the purchase and sale of the Mortgage
Loans shall take place at the offices of O'Melveny & Myers LLP, New York, New
York, at 10:00 a.m. New York time, on the Closing Date.
2.2. Purchase Price. On the Closing Date, as full
consideration for the Mortgage Loan Seller's sale of the Mortgage Loans to the
Purchaser, the Purchaser will deliver to the Mortgage Loan Seller an amount
equal to $ 237,549,473.16 in immediately available funds, which represents the
purchase price for the Mortgage Loans net of the Mortgage Loan Seller's
Allocable Share of expenses as provided in Section 5.1(b).
2.3. Conveyance of Mortgage Loans. On the Closing Date, the
Mortgage Loan Seller shall sell, transfer, assign, set over and otherwise convey
to the Purchaser, without recourse but subject to the terms of this Agreement,
and the Purchaser shall purchase, all right, title and interest of the Mortgage
Loan Seller in and to the Mortgage Loans, including: (i) all scheduled payments
of interest and principal due on or with respect to the Mortgage Loans after the
Cut-off Date (whether or not received); (ii) all other payments of interest and
principal received by the Mortgage Loan Seller on or with respect to the
Mortgage Loans after the Cut-off Date, other than any such payments of interest
or principal which were due on or prior to the Cut-off Date; and (iii) all of
the Mortgage Loan Seller's right, title and interest in and to the proceeds of
any related title, hazard or other insurance policies received by the Mortgage
Loan Seller on or with respect to the Mortgage Loans after the Cut-off Date.
Upon payment of the Purchase Price as provided in Section 2.2, the Mortgage Loan
Seller shall be deemed to have sold, transferred, assigned, set over and
conveyed to the Purchaser the Mortgage Loans, together with all right title and
interest of the Mortgage Loan Seller in and to the Mortgage Loans as described
in the immediately preceding sentence. Upon such sale, the ownership of each
Mortgage Note, the Mortgage and all related documents and instruments contained
in the related Mortgage File shall immediately vest in the Purchaser, its
successors and assigns and the ownership of all records and documents with
respect to the related Mortgage Loan prepared by or which come into the
possession of the Mortgage Loan Seller shall immediately vest in the Purchaser,
its successors and assigns. The contents of any Mortgage File in the possession
of the Mortgage Loan Seller at any time after such sale, and any payments on the
Mortgage Loans due after the Cut-off Date and received by the Mortgage Loan
Seller, shall be held in trust by the Mortgage Loan Seller for the benefit of
the Purchaser, its successors and assigns as the owner thereof, and shall be
promptly delivered by the Mortgage Loan Seller to or upon the order of the
Purchaser, its successors and assigns.
2.4. Delivery of Mortgage Loan Documents. (a) On or before the
Closing Date, the Mortgage Loan Seller shall deliver to and deposit with, or
cause to be delivered to and
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deposited with, the Purchaser, the Trustee or a custodian of the Trustee (as
Purchaser shall direct), each of the following documents for each Mortgage Loan
(such documents, the "Mortgage File"):
(i) each original Mortgage Note, bearing, or accompanied by, all
prior and intervening endorsements or assignments showing a
complete chain of endorsement or assignment from the
originator of the Mortgage Loan to a Mortgage Loan Seller, and
further endorsed (at the direction of the Purchaser), on its
face or by allonge attached thereto, without recourse, to the
order of the Trustee in the following form: "Pay to the order
of LaSalle Bank National Association, as trustee for the
registered Holders of PaineWebber Mortgage Acceptance
Corporation V Commercial Mortgage Pass-Through Certificates,
Series 1999-C1, without recourse, representation or warranty,
express or implied" or in blank;
(ii) the original Mortgage (or a certified copy thereof from the
applicable recording office) and originals (or certified
copies from the applicable recording office) of any
intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the
applicable Mortgage Loan Seller, in each case with evidence of
recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form, to
"LaSalle Bank National Association, as trustee for the
registered Holders of PaineWebber Mortgage Acceptance
Corporation V Commercial Mortgage Pass-Through Certificates,
Series 1999-C1" or in blank;
(iv) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof
showing a complete chain of assignment from the originator of
the Mortgage Loan to the applicable Mortgage Loan Seller, in
each case with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in
recordable form, executed by the applicable Mortgage Loan
Seller to "LaSalle Bank National Association, as Trustee for
the benefit of Certificateholders of PaineWebber Commercial
Mortgage Pass-Through Certificates, Series 1999-C1" or in
blank;
(vi) an original or copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof
showing a complete chain of assignment from the originator of
the Mortgage Loan (if different than the applicable Mortgage
Loan Seller) to the applicable Mortgage Loan Seller, in each
case with evidence of recording thereon;
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(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), in
recordable form, executed by the Mortgage Loan Seller to
"LaSalle Bank National Association, as Trustee for the benefit
of Certificateholders of PaineWebber Commercial Mortgage
Pass-Through Certificates, Series 1999-C1" or in blank;
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements,
with evidence of recording thereon, where appropriate, in
those instances where the terms or provisions of the Mortgage,
Mortgage Note or any related security document have been
consolidated or modified or the Mortgage Loan has been
assumed;
(ix) the original lender's title insurance policy or a copy thereof
effective as of the date of the recordation of the Mortgage
Loan, together with all endorsements or riders that were
issued with or subsequent to the issuance of such policy,
insuring the priority of the Mortgage as a first lien on the
Mortgagor's fee interest in the Mortgaged Property, or if the
policy has not yet been issued, an original or copy of a
written commitment, interim binder or the pro forma title
insurance policy, dated as of the date on which the related
Mortgage Loan was funded;
(x) the original or a copy of any guaranty of the obligations of
the Mortgagor under the Mortgage Loan;
(xi) all UCC Financing Statements and continuation statements or
copies thereof sufficient to perfect (and maintain the
perfection of) the security interest held by the originator of
the Mortgage Loan (and each assignee prior to the Trustee) in
and to the personalty of the Mortgagor at the Mortgaged
Property (in each case with evidence of filing thereon), and
to transfer such security interest to the Trustee;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the
Mortgage, any Mortgage Note or other document or instrument
referred to above was not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loan with Additional Debt that is
subordinate to such Mortgage Loan, a subordination agreement,
pursuant to which such Additional Debt is subordinated to such
Mortgage Loan;
(xiv) a survey of the related Mortgaged Property;
(xv) in the case of a CTL Loan, the original Residual Value Policy
and/or Lease Enhancement Policy, if any, with all
endorsements;
(xvi) the original or copy of any related cash management agreements
and
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lockbox agreements, if any;
(xvii) the original or copy of any related environmental reports;
(xviii) the original or copy of any related Sub-Servicing Agreement,
if any;
(xix) the original or copy of any related ground leases; and
(xx) any additional documents required to be added to the Mortgage
File pursuant to this Agreement;
(b) If the Mortgage Loan Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original Mortgage Note, the Mortgage
Loan Seller shall deliver a copy or duplicate original of such Mortgage Note,
together with an affidavit certifying that the original thereof has been lost or
destroyed and indemnification of the Purchaser and of the Trustee on behalf of
the Trust Fund against any losses that the Trust Fund may incur by reason of
such lost or destroyed Mortgage Note. 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), (iv), (vi), (viii), (xi) and
(xii) of Section 2.4(a), with evidence of filing or recording thereon, solely
because of a delay caused by the public recording or filing office where such
document or instrument has been delivered for recordation or filing, the
delivery requirements of this Mortgage Loan Purchase Agreement shall be deemed
to have been satisfied as to such non-delivered document or instrument 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 or filing) is delivered to the Purchaser, 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
(certified by the appropriate county recorder's office, in the case of the
documents and/or instruments referred to in clause (ii) of Section 2.4(a) to be
a true and complete copy of the original thereof submitted for recording or
filing), with evidence of recording or filing thereon, is delivered to the
Purchaser, the Trustee or such Custodian within 120 days of the Closing Date (or
within such longer period after the Closing Date as the Purchaser may consent
to, which consent shall not be unreasonably withheld so long as the Mortgage
Loan Seller is, as certified in writing to the Purchaser and the Trustee no less
often than every 90 days, 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 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 this Section 2.4(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 and certified in the
case of the documents and/or instruments referred to in clause (ii) of Section
2.4(a) by the appropriate county recorder's office to be a true and complete
copy of the original thereof submitted for recording) is delivered to the
Purchaser, the Trustee or a Custodian appointed thereby on or before the Closing
Date together with an affidavit certifying that the original thereof has been
lost or destroyed. With respect to any Mortgage Loan, and notwithstanding the
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foregoing or Section 2.4(a), the Mortgage Loan Seller may deliver a UCC-3 on or
before the Closing Date that does not contain the filing information for the
related UCC-1 and/or UCC-2 if such UCC-1 and/or UCC-2 has not been returned to
the Mortgage Loan Seller by the applicable filing office, and the Mortgage Loan
Seller may deliver an assignment referred to in clauses (iii), (v) or (vii) of
Section 2.4(a) that does not contain the recording information for the related
Mortgage, Assignment of Leases or Security Agreement, as applicable, if such
Mortgage, Assignment of Leases or Security Agreement has not been returned to
the Mortgage Loan Seller by the applicable recording office. The Mortgage Loan
Seller hereby authorizes the Purchaser, acting in its stead and on its behalf,
to fill in any missing filing or recording information or any instrument or
document required to be delivered pursuant to this subsection (b).
(c) Except under the circumstances provided for in the last
sentence of this subsection (c), the Mortgage Loan Seller shall as to each
Mortgage Loan, promptly (and in any event within 30 days of the later of the
Closing Date and the Purchaser's and Trustee's actual receipt of the related
documents) cause the related documents to be delivered to the Trustee in
recordable form for recording or filing, as the case may be, in the appropriate
public office for real property records or UCC Financing Statements, as
appropriate, each assignment referred to in clauses (iii), (v) and (vii) of
Section 2.4(a) and each UCC-3 to the Trustee referred to in clause (xi) of
Section 2.4(a) as indicated in such assignment documents. Each such assignment
shall reflect that it should be returned by the public recording office to the
Trustee or its designee following recording, and each such UCC-3 shall reflect
that the file copy thereof should be returned to the Trustee or its designee
following filing. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Purchaser or an assignee thereof, which may include the Trustee or a Custodian
or its agent, shall 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, all
at the Mortgage Loan Seller's expense. The Purchaser shall execute, or cause the
Mortgage Loan Seller to execute any replacement document or instrument being
filed in substitution for any such lost or returned unrecorded or unfiled
document or instrument at the Mortgage Loan Seller's expense and assist the
Purchaser, the Trustee or a Custodian or its agent in recording or filing such
documents or instruments. Notwithstanding the foregoing, there shall be no
requirement to record any assignment to the Trustee referred to in clause (iii),
(v) or (vii) of the Section 2.4(a), or to file any UCC-3 referred to in clause
(xi) of Section 2.4(a) in those jurisdictions where, in the written opinion of
local counsel of Purchaser, the Trustee or a Custodian acceptable to the
Purchaser and the Trustee, such recordation and/or filing is not required to
protect the Purchaser's or the Trustee's interest in the Mortgage Loans against
sale, further assignment, satisfaction or discharge by the Mortgage Loan Seller
or the Purchaser.
(d) All documents and records in the Mortgage Loan Seller's
possession relating to the Mortgage Loans (including financial statements,
operating statements and any other information provided by the respective
Mortgagor from time to time) or copies thereof, that are not required to be a
part of a Mortgage File in accordance with the definition thereof shall be
delivered to the Servicer on or before the Closing Date.
(e) Mortgage Loan Seller shall cause all funds on deposit in
escrow accounts maintained with respect to the Mortgage Loans in the name of the
Mortgage Loan Seller or any
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other name to be transferred to the Servicer promptly after the Closing Date,
but in all events within three (3) business days after the Closing Date.
2.5. Acceptance of Mortgage Loans. Within 90 days of the
Closing Date, the Purchaser or an assignee thereof, which may include the
Trustee or a Custodian on its behalf, shall complete a review of each of the
Mortgage Loan Documents delivered or caused to be delivered by the Mortgage Loan
Seller constituting the Mortgage Files and shall certify, as to each Mortgage
Loan, that (i) all documents required to be delivered pursuant to Section 2.4
are in its possession, (ii) such documents appear regular on their face and
relate to such Mortgage Loan, and (iii) based on the examinations referred to in
this Section 2.5 and only as to the foregoing documents, the information set
forth in the Mortgage Loan Schedule with respect to the items specified in
clauses (i), (ii)(a), (iv), (v), (vii) and (x)(c) of the definition of "Mortgage
Loan Schedule" set forth in the Pooling and Servicing Agreement is correct. If
the Purchaser or such assignee discovers or receives notice that any such
document described in the first or second preceding sentence is a Defective
Document Mortgage Loan, the Mortgage Loan Seller shall correct or cure any such
omission or defect or repurchase such Defective Document Mortgage Loan in
accordance with Section 3.3 of this Agreement.
[End of Article II]
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ARTICLE III.
REPRESENTATIONS, WARRANTIES AND COVENANTS;
REPURCHASE OF DEFECTIVE MORTGAGE LOANS
3.1. Representations and Warranties of the Purchaser.
(a) The Purchaser hereby represents and warrants that on the
Closing Date:
(i) Purchaser Duly Formed and Authorized. The
Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware,
and the Purchaser 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, including, but not limited to, the power
and authority to purchase and acquire the Mortgage Loans in
accordance with this Agreement;
(ii) Legal and Binding Obligations. Assuming the due
authorization, execution and delivery of this Agreement by
each other party hereto, this Agreement and all of the
obligations of the Purchaser hereunder are the legal, valid
and binding obligations of the Purchaser, enforceable against
the Purchaser 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);
(iii) No Conflict with Law or Agreements. The
execution and delivery of this Agreement and the performance
by the Purchaser of its obligations hereunder will not
conflict with any provisions of any law or regulations to
which the Purchaser is subject, or conflict with, result in a
breach of or constitute a default under any of the terms,
conditions or provisions of the certificate of incorporation
or the by-laws of the Purchaser or any indenture, agreement or
instrument to which the Purchaser is a party or by which it is
bound, or any order or decree applicable to the Purchaser, or
result in the creation or imposition of any lien on any of the
Purchaser's assets or property, which would materially and
adversely affect the ability of the Purchaser to carry out the
transactions contemplated by this Agreement; the Purchaser has
obtained any consent, approval, authorization or order of any
court or governmental agency or body required for the
execution, delivery and performance by the Purchaser of this
Agreement;
(iv) No Proceedings. There is no action, suit or
proceeding pending or, to the Purchaser's knowledge,
threatened against the Purchaser in any court or by or before
any other governmental agency or instrumentality which would
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materially and adversely affect the validity of the Mortgage
Loans or the ability of the Purchaser to carry out the
transactions contemplated by this Agreement.
3.2. Representations and Warranties of the Mortgage Loan
Seller.
(a) The Mortgage Loan Seller hereby represents and warrants
with respect to itself that, as of the Closing Date that:
(i) Seller Duly Formed and Authorized. The Mortgage Loan
Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and the Mortgage Loan
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, including, but not
limited to, the power and authority to sell, assign and transfer the
Mortgage Loans in accordance with this Agreement;
(ii) Legal and Binding Obligations. Assuming the due
authorization, execution and delivery of this Agreement by each other
party hereto, this Agreement and all of the obligations of the Mortgage
Loan Seller hereunder are the legal, valid and binding obligations of
the Mortgage Loan Seller, enforceable against the Mortgage Loan 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);
(iii) No Conflict with Law or Agreements. The execution and
delivery of this Agreement and the performance by the Mortgage Loan
Seller of its obligations hereunder will not conflict with any
provisions of any law or regulations to which the Mortgage Loan Seller
is subject, or conflict with, result in a breach of or constitute a
default under any of the terms, conditions or provisions of the
certificate of incorporation or the by-laws of the Mortgage Loan Seller
or any indenture, agreement or instrument to which the Mortgage Loan
Seller is a party or by which it is bound, or any order or decree
applicable to the Mortgage Loan Seller, or result in the creation or
imposition of any lien on any of the Mortgage Loan Seller's assets or
property, which would materially and adversely affect the ability of
the Mortgage Loan Seller to carry out the transactions contemplated by
this Agreement; the Mortgage Loan Seller has obtained any consent,
approval, authorization or order of any court or governmental agency or
body required for the execution, delivery and performance by the
Mortgage Loan Seller of this Agreement;
(iv) No Proceedings. There is no action, suit or proceeding
pending or, to the Mortgage Loan Seller's knowledge, threatened against
the Mortgage Loan Seller in any court or by or before any other
governmental agency or instrumentality which would materially and
adversely affect the validity of the Mortgage Loans or the ability of
the Mortgage Loan Seller to carry out the transactions contemplated by
this Agreement;
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(v) Mortgage Files in Possession. The Mortgage Loan Seller or
its agent is in possession of a Mortgage File with respect to each
Mortgage Loan identified on the Mortgage Loan Schedule and each such
Mortgage File will be transferred to the Purchaser or the Trustee as
its designee. The Mortgage Loan Seller has not withheld any material
information with respect to the Mortgage File;
(vi) No Material Default. The Mortgage Loan Seller is not in
default in the performance of any obligations, covenants or conditions
contained in any material agreement or instrument to which it is party,
which default might have consequences that would materially and
adversely affect the financial conditions or operations of the Mortgage
Loan Seller or its properties taken as a whole or would have
consequences that would materially and adversely affect its performance
hereunder;
(b) Representations and Warranties as to the Mortgage Loans.
The Mortgage Loan Seller hereby represents and warrants with respect to each
Mortgage Loan that, as of the date specified below or, if no such date is
specified, as of the Cut-off Date:
(i) Mortgage Loan Schedule. The Mortgage Loan Schedule is
true, complete and accurate in all material respects
as of June 1, 1999.
(ii) Representations and Warranties Remain True. The
Mortgage Loan Seller has not taken any action that
would cause the representations and warranties made
by each Mortgagor under the related Mortgage Loan not
to be true. The Mortgage Loan Seller has no knowledge
that the material representations and warranties made
by the Mortgagor in each Mortgage Loan are not true
in any material respect.
(iii) No Fraudulent Acts by Mortgage Loan Seller,
Originator or Mortgagor. (A) Neither the Mortgage
Loan Seller, nor, to the Mortgage Loan Seller's best
knowledge, (1) any originator other than the Mortgage
Loan Seller or (2) the Mortgagor, committed any
fraudulent acts during the origination process of any
Mortgage Loan, other than the Earn-out Loans, (B)
with respect to each Mortgage Loan that Mortgage Loan
Seller originated (other than the Earn-out Loans) the
origination of such Mortgage Loan is in all material
respects legal, proper and prudent in accordance with
customary industry standards utilized by prudent
institutional and commercial mortgage lenders and (C)
to the best of the Mortgage Loan Seller's knowledge,
(1) the origination of each Mortgage Loan purchased
by the Mortgage Loan Seller and (2) the servicing and
collection of each Mortgage Loan is in all material
respects legal, proper and prudent in accordance with
customary industry standards utilized by prudent
institutional and commercial mortgage lenders or loan
servicers as appropriate.
(iv) Mortgage Loan Seller's Title to Mortgage Loans.
Immediately prior to the sale of the Mortgage Loan to
the Depositor, the Mortgage Loan Seller had good and
marketable title to and was the sole owner and holder
of each
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Mortgage Loan, and the assignment validly transferred
its ownership of the Mortgage Loan, free and clear of
any and all liens, pledges and other encumbrances
(other than the Mortgage Loan Seller's obligation to
repurchase defective Mortgage Loans), subject to
exceptions of the type set forth in item (xlv) below.
(v) No Delinquency. No monthly payment of principal of or
interest on any Mortgage Loan has been more than 30
days delinquent since origination and as of the
Cut-off Date for such Mortgage Loan, no monthly
payment of principal of or interest on such Mortgage
Loan is 30 or more days delinquent.
(vi) No Default. There is no material default, breach,
violation or event of acceleration existing under the
related Mortgage or Mortgage Note, and to the
Mortgage Loan Seller's knowledge, there is 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 such a default, breach, violation or event
of acceleration.
(vii) No Modification or Release. Since origination, such
Mortgage Loan has not been modified, altered,
satisfied, canceled, subordinated or rescinded, with
the exception of any modification, alteration,
satisfaction, cancellation, subordination or
recission specifically disclosed in a written
instrument that (A) was entered into prior to the
Cut-off Date, (B) has been recorded in the applicable
public recording office if necessary to maintain the
priority of the lien of the related Mortgage and
related Security Agreements, if any, and (C) is being
delivered to the Trustee or Custodian as part of the
related Mortgage File. No material portion of the
related Mortgaged Property has been released from the
lien of the related Mortgage, in each case, 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. None of the related Mortgages contains
terms which provide for or require release of any
portion of the related Mortgaged Property from the
lien of the Mortgage in any manner which materially
and adversely affects the adequacy of the security
provided by the Mortgaged Property.
(viii) No Insolvency. To the knowledge of the Mortgage Loan
Seller, neither the Mortgagor nor any guarantor is a
debtor in any state or federal bankruptcy or
insolvency proceeding or any regulatory proceeding.
(ix) No Proceedings. To the knowledge of the Mortgage Loan
Seller, as of the Closing Date, there is no pending
action, suit or proceeding, arbitration or
governmental investigation against a Mortgagor or
Mortgaged Property, an adverse outcome of which would
materially and adversely affect such Mortgagor's
ability to perform under the related Mortgage Loan.
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(x) Single-Purpose Borrower. Except as set forth on
Exhibit D attached hereto, (A) the Mortgage Loan
Documents executed in connection with each Mortgage
Loan require that the related Mortgagor be a
single-purpose entity, (B) the Mortgage Loan Seller
has not waived such covenants and has no knowledge
that the Mortgagor is not in compliance therewith,
(C) with respect to each Mortgage Loan with a Cut-off
Date balance greater than 1% of the Initial Pool
Balance the related Mortgagor is a single purpose
entity and (D) the Mortgagor is organized under the
laws of a state, territory or district of the United
States. For purposes of this representation,
"single-purpose entity" shall mean an entity, other
than an individual, the organizational documents of
which limit its purpose to owning and operating a
single property or group of properties, does not
engage in any business unrelated to such property and
its financing, and does not have any assets other
than those related to its interest in the related
Mortgaged Property or its financing, or any
indebtedness other than as permitted under the
related Mortgage Loan.
(xi) Mortgagor Is The Sole Owner of Interest in Lease
Payments. Except as set forth in Exhibit D, no person
other than the Mortgagor owns any interest in any
payments due under the leases relating to the
Mortgaged Property that is superior to or of equal
priority with the Mortgage Loan Seller's interest
therein.
(xii) Defeasance; No REMIC Disqualification. With respect
to any Mortgage Loan that pursuant to the Mortgage
Loan Documents can be defeased, (A) the Mortgage Loan
cannot be defeased within two years of the Closing
Date, (B) the Mortgagor can pledge only United States
government securities (within the meaning of section
2(a)(16) of the Investment Company Act of 1940) as
the substitute collateral and (C) the Mortgagor can
be required by the Master Servicer to establish that
the release of the lien is to facilitate the
disposition of the Mortgaged Property or is in
connection with some other customary commercial
transaction and not as part of an arrangement to
collateralize a REMIC offering with obligations that
are not real estate mortgages.
(xiii) REMIC Qualification. 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 Regulation ss.1.860G-2(f)(2) that
treats a defective obligation as a "qualified
mortgage" or any substantially similar successor
provision) and any and all Prepayment Premiums and
Yield Maintenance Charges constitute "customary
prepayment penalties" within the meaning of Treasury
Regulation ss.1.860G-1(b)(2).
(xiv) Existing Indebtedness. Except as set forth on Exhibit
D, there are no subordinate or pari passu Mortgages
encumbering the related Mortgaged Property, no
preferred equity interests held by the Mortgage Loan
Seller or mezzanine debt related to such Mortgaged
Property.
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(xv) No Additional Indebtedness. Except as set forth in
Exhibit D, each Mortgage Loan prohibits the related
Mortgagor from mortgaging or otherwise encumbering
the Mortgaged Property and from carrying any
additional indebtedness except in connection with (A)
trade debt and equipment financings in the ordinary
course of Mortgagor's business and (B) liens arising
by operation of law that are contested in accordance
with the terms of the Mortgage Loan.
(xvi) Annual Reports. Each Mortgage Loan requires the
related Mortgagor to provide annual operating
statements, rent rolls, and other information that
the holder of the Mortgage Loan may reasonably
request in connection with the related Mortgagor and
the related Mortgaged Property.
(xvii) Proceeds Fully Disbursed. The proceeds of each
Mortgage Loan have been fully disbursed and there is
no requirement for future advances thereunder and the
Mortgage Loan Seller covenants that it will not make
any future advances under the Mortgage Loan to the
related Mortgagor. No advance of funds has been made
by the Mortgage Loan Seller , any affiliate or any
third party originator to the related Mortgagor
(other than mezzanine debt that is set forth on
Exhibit G) and no funds have been received from or on
behalf of any person other than the related Mortgagor
for, or on account of, payments due on the Mortgage
Loan.
(xviii) No Negative Amortization. Other than the ARD Loans,
which may have negative amortization from and after
their respective Anticipated Repayment Dates, no
Mortgage Loan provides for a shared appreciation or
equity participation feature, any other contingent or
additional interest feature or the negative
amortization of interest.
(xix) Whole Loan. Each Mortgage Loan is a whole loan.
Neither Mortgage Loan Seller nor any affiliate
thereof has any obligation to make any capital
contributions to any Mortgagor under a Mortgage Loan
other than contributions made on or prior to the
closing date.
(xx) Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any mortgage loan that is
not included in the Trust.
(xxi) Conditions for Releases of Mortgaged Property. Except
in connection with Mortgage Loans that are
cross-collateralized and Mortgage Loans that are
secured by more than one Mortgaged Property, no
Mortgage Loan requires the Mortgage Loan Seller to
release any portion of the related Mortgaged Property
from the lien of the related Mortgage except upon (A)
payment in full of all amounts due under the related
Mortgage Loan, (B) releases of unimproved
out-parcels, (C) releases of portions of the
Mortgaged Property that will not have a material
adverse effect on the adequacy of the remaining
collateral for the related Mortgage Loan or (D)
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substitution of government securities for such
Mortgaged Property in a defeasance complying with
Treasury Regulationsss.1.860G-2(a)(8).
(xxii) Documents Valid. Each related Mortgage Note,
Mortgage, Assignment of Leases (if any) and other
agreement executed in connection with each Mortgage
Loan is the legal, valid and binding obligation of
the related Mortgagor, enforceable in accordance with
its terms, except as such enforcement may be limited
by applicable bankruptcy, insolvency, receivership,
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).
(xxiii) Assignments of Leases Create First Priority Security
Interest. Unless the related Mortgaged Property is
owner occupied, the Mortgage File for such Mortgage
Loan contains an Assignment of Leases, either as a
separate instrument or incorporated into the related
Mortgage, which creates in favor of the holder
thereof a valid, collateral or first priority
assignment of, or a valid first priority security
interest in, certain rights under the related leases,
subject only to a license granted to the related
Mortgagor to exercise certain rights and to perform
certain obligations of the lessor under such leases,
including the right to operate the related Mortgaged
Property. Each related assignment of Mortgage from
the Mortgage Loan Seller to the Trustee and any
related reassignment of Assignment of Leases, if any,
or assignment of any other agreement executed in
connection with each Mortgage Loan, from the Mortgage
Loan Seller to the Purchaser (or the Trustee as its
assignee) constitutes the legal, valid, binding and
enforceable assignment from the Mortgage Loan Seller
to the Purchaser (or the Trustee as its assignee)
except as such enforcement may be limited by
bankruptcy, insolvency, receivership, 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).
(xxiv) Mortgages and Security Agreements Create First Lien.
Each Mortgage is a valid and enforceable first lien
on the related Mortgaged Property subject only to (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
related Mortgagor's ability to pay its obligations
when they become due or the value of the Mortgaged
Property and (C) the exclusions and exceptions
(general and specific) set forth in a lender's title
insurance policy, none of which, individually or in
the aggregate, materially interferes with the
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current use of the related Mortgaged Property or
materially interferes with the security intended to
be provided by such Mortgage or with the related
Mortgagor's ability to pay its obligations when they
become due or the value of the Mortgaged Property. As
of the date of origination of such Mortgage Loan and
as of the Closing Date, such Mortgaged Property is
free and clear of any mechanics' and materialmen's
liens which are prior to or equal with the lien of
the related Mortgage, except those which are insured
against by a lender's title insurance policy or are
referred to in the preceding sentence. Any Security
Agreement, chattel mortgage or equivalent document
related to and delivered in connection with the
Mortgage Loan establishes and creates a valid and
enforceable first lien on and first priority security
interest in the personal property described therein
(including hotel revenues with respect to a Mortgaged
Property that is operated as a hotel), except as such
enforcement may be limited by bankruptcy, insolvency,
receivership, 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).
(xxv) No Defenses to Payment. The Mortgage Loan is not
subject to any right of rescission, set-off,
abatement, diminution, valid counterclaim or defense,
including the defense of usury, available to the
related Mortgagor with respect to such Mortgage Note,
Mortgage, Assignment of Leases and other agreements
with respect to any excess interest on an ARD Loan
after the related Anticipated Repayment Date and any
default interest, late charges, prepayment premiums,
yield maintenance charges.
(xxvi) Mortgage Loan Documents Comply With Law. The terms of
each of the Mortgage Loan Documents comply in all
material respects with all requirements of applicable
local, state or federal law.
(xxvii) Customary Provisions. Each related Mortgage contains
customary and enforceable (subject to bankruptcy,
insolvency, moratorium, redemption or other similar
laws affecting creditors' rights generally or by
general principles of equity) provisions so 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, and there is no exemption
available to the Mortgagor which would interfere with
such right to foreclose (except as may be imposed by
bankruptcy, insolvency, moratorium, redemption or
other similar laws affecting creditors' rights
generally or by general principles of equity).
(xxviii) Mortgagor's Interest in Mortgaged Property. The
interest of the related Mortgagor in the related
Mortgaged Property consists of a fee simple estate or
a leasehold estate in all of the real property
constituting a part of the Mortgaged Property.
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(xxix) Recorded Instruments. Both the Mortgage and the
assignment of Mortgage for each Mortgage Loan have
been properly recorded in the applicable jurisdiction
and constitute the legal, valid and binding
assignment of such Mortgage Loan. The full amount of
the Mortgage has been recorded on each related
Mortgaged Property, and all applicable mortgage
recording taxes have been paid.
(xxx) UCC Financing Statements. A Form UCC-1 financing
statement has been submitted for filing or
recordation with respect to personal property
constituting a part of the related Mortgaged Property
as to which a security interest can be perfected by
filing (including hotel revenues with respect to a
Mortgaged Property that is operated as a hotel), and
a copy of each Form UCC-2 or UCC-3 assignment, if
any, of such financing statement executed by the
Mortgage Loan Seller in blank which the Trustee or
its designee is authorized to complete (and but for
the insertion of the name of the assignee and any
related filing information which is not yet available
to the Mortgage Loan Seller is in suitable form for
filing) and to file in the filing office in which
such financing statement was filed
(xxxi) Collateral. The Mortgage Note is not and has not been
secured by any collateral other than collateral
covered by the related Mortgage, the related
Assignment of Leases (if any) and any other agreement
executed in connection with the origination of the
Mortgage Loan.
(xxxii) Borrower's Licenses and Permits. As of the date of
origination of each Mortgage Loan, and, to the
Mortgage Loan Seller's knowledge, as of the Cut-off
Date, each related Mortgagor was in possession of all
material licenses, permits and other authorizations
necessary and required by all applicable laws for the
conduct of its business and all such licenses,
permits and authorizations were valid and in full
force and effect.
(xxxiii) No Usury Violation. The Mortgage Rate (exclusive of
any excess interest on an ARD Loan after the related
Anticipated Repayment Date and any Default Interest,
late charges, Prepayment Premiums and Yield
Maintenance Charges) of each 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; and any
and all other requirements of any federal, state or
local laws, including, without limitation,
truth-in-lending, real estate settlement procedures,
equal credit opportunity or disclosure laws,
applicable to each Mortgage Loan have been complied
with as of the date of origination of each Mortgage
Loan.
(xxxiv) Acceleration Provisions. 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 or
indirectly
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transferred or sold (other than transfers for estate
planning purposes and other purposes where no change
of control occurs) or encumbered in connection with
subordinate financing (other than any indebtedness
described in clauses (xiv) and (xv) above) and each
related Mortgage or loan agreement prohibits the
pledge or encumbrance of the Mortgaged Property
without the consent of the holder of the Mortgage
Loan.
(xxxv) Non-Recourse Mortgage Loan. The Loan Documents for
each Mortgage Loan provide that such Mortgage Loan is
non-recourse to the related parties thereto except
for certain acts including the fraud, willful
misconduct or material misrepresentation by the
related Mortgagor and/or its affiliates, in which
case either (A) such Mortgage Loan shall become a
recourse obligation of the Mortgagor or another
person or (B) the Mortgagor shall assume personal
liability for any losses incurred by the Mortgage
Loan Seller or its assignee due to such acts.
Additionally, the Mortgage Loan Documents for each
Mortgage Loan provide that the related Mortgagor
thereunder shall be liable to the related Mortgage
Loan Seller for any losses incurred by the Mortgage
Loan Seller due to (1) the misapplication or
misappropriation of rents, insurance proceeds or
condemnation awards, (2) acts of waste and (3)
breaches of any environmental covenants contained in
the related Mortgage Loan Documents.
(xxxvi) Mortgages Secured by Deeds of Trust. To the knowledge
of the Mortgage Loan Seller, with respect to each
Mortgage which is a deed of trust, a trustee, duly
qualified under applicable law to serve as such, has
been properly designated and currently so serves and
is named in the deed of trust or has been substituted
in accordance with applicable law, and except in
connection with a trustee's sale after a default by
the related Mortgagor or in connection with the
release of the related Mortgaged Property, no fees
are or will become payable to such trustee.
(xxxvii) Escrows. All amounts required to have been deposited
by each Mortgagor under the Mortgage Loan Documents
have been deposited. All of the Mortgage Loan
Seller's interest in these amounts will be conveyed
to the trust. All requirements for escrows are
memorialized in one or more written agreements that
are contained within the Mortgage File for such
Mortgage Loan.
(xxxviii) Property Condition. To the Mortgage Loan Seller's
knowledge, based upon a site inspection conducted in
connection with the origination of the Mortgage Loan
and a review of the related engineering report, each
related Mortgaged Property is 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; the Mortgage Loan
Seller has received no actual notice of (A) any
proceeding pending for the total or partial
condemnation of such Mortgaged Property or (B) any
damage to
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such Mortgaged Property that materially and adversely
affects the value of such Mortgaged Property.
(xxxix) No Delinquent Charges. There are no delinquent taxes,
ground rents, insurance premiums or assessments
(including, without limitation, assessments payable
in future installments or other similar outstanding
charges, water charges or sewer rents) affecting any
Mortgaged Property or such amounts, if existing and
in dispute, have been escrowed or covered by a letter
of credit. For purposes of this representation, an
obligation shall become "delinquent" on the date on
which both of the following conditions are satisfied:
(A) interest and/or penalties are due with respect to
the unpaid amount and (B) enforcement action can be
taken by the related taxing authorities.
(xl) No Encroachments. All improvements included in any
MAI appraisals are within the boundaries of the
related Mortgaged Property, with the exception of de
minimis encroachments, and the Mortgage Loan Seller
has obtained title insurance insuring against any
losses arising from such de minimis encroachments. No
improvements on adjoining properties encroach upon
any Mortgaged Property except for de minimis
encroachments or encroachments as to which the
Mortgage Loan Seller has obtained title insurance
coverage insuring against losses arising from such
encroachments.
(xli) Mortgaged Property Compliance with Zoning Laws Etc.
The improvements located on or forming part of each
Mortgaged Property materially comply with applicable
zoning and building laws, ordinances and regulations,
or constitute a legal non-conforming use or structure
or, if any such improvement does not so comply, such
non-compliance does not materially and adversely
affect the value of the related Mortgaged Property.
(xlii) Permanent Financing. The Mortgage Loan was not
originated for the purpose of financing the
construction of uncompleted improvements on the
related Mortgaged Property.
(xliii) Property Inspections. The Mortgage Loan Seller has
inspected or caused to be inspected each related
Mortgaged Property within the past twelve months.
(xliv) Access. Each Mortgaged Property is located on or
adjacent to a dedicated road, or has access to an
irrevocable easement permitting ingress and egress,
is served by public utilities and services generally
available in the surrounding community and otherwise
appropriate for the use in which the Mortgaged
Property is currently being utilized, and is a
separate tax parcel.
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(xlv) First Priority Lien Insured. The lien of each related
Mortgage is a first priority lien on the fee or
leasehold interest of the related Mortgagor in the
original principal amount of the related Mortgage
Loan or allocated loan amount of the portions of the
Mortgaged Property covered thereby (as set forth in
the related Mortgage) and is insured by an ALTA
lender's title insurance policy or its equivalent (or
a binding commitment therefor), insuring the Mortgage
Loan Seller, its successors and assigns in the
original principal amount of the Mortgage Loan after
all advances of principal have been paid, subject
only to (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 the value of
the Mortgaged Property and (C) the exclusions and
exceptions (general and specific) set forth in such
policy, none of which, individually or in the
aggregate, materially interferes with the current use
of the Mortgaged Property or materially interferes
with the security intended to be provided by such
Mortgage or with the related Mortgagor's ability to
pay its obligations when they become due or the value
of the Mortgaged Property. The premium for such
policy was paid in full; such policy was issued by a
title insurance company licensed to issue policies in
the state in which the related Mortgaged Property is
located and is assignable to the Purchaser and the
Trustee without the consent of or any notification to
the insurer, and is in full force and effect upon the
consummation of the transactions contemplated by this
Agreement; no claims have been made under such policy
and the Mortgage Loan Seller has not undertaken any
action or omitted to take any action, and has no
knowledge of any such act or omission, which would
impair or diminish the coverage of such policy.
(xlvi) Environmental Matters. A Phase I environmental report
and with respect to certain Mortgage Loans, a Phase
II environmental report, was conducted by a reputable
environmental engineer in connection with such
Mortgage Loan, which report did not indicate any
material non-compliance or material existence of
hazardous material or, if any material non-compliance
or material existence of hazardous materials was
indicated in any such report, the remedial action
recommended to be taken in the report has been taken,
or funds sufficient to cover any recommended remedial
action have been escrowed by the related Mortgagor
and held by the Mortgage Loan Seller under the
related Mortgage or the Tenant under a Credit Tenant
Loan has the obligation to remedy such condition or
circumstance. To the best of the Mortgage Loan
Seller's knowledge, in reliance on such environmental
reports, each Mortgaged Property is in material
compliance with all applicable federal, state and
local laws
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pertaining to environmental hazards other than as
disclosed in such environmental reports, and to the
best of the Mortgage Loan Seller's knowledge, no
notice of violation of such laws has been issued by
any governmental agency or authority, except as
indicated in certain environmental reports or other
documents previously provided to the Rating Agencies;
the Mortgage Loan Seller has not taken any action
which would cause the Mortgaged Property not to be in
compliance with all federal, state and local laws
pertaining to environmental hazards. Each Mortgagor
represents and warrants in the related Mortgage Loan
Documents that except as set forth in certain
environmental reports and to the best of its
knowledge it has not used, caused or permitted to
exist and will not use, cause or permit to exist on
the related Mortgaged Property any hazardous
materials in any manner which violates federal, state
or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage,
treatment, transportation, manufacture, refinement,
handling, production or disposal of hazardous
materials. Each Mortgagor (or an affiliate thereof)
has agreed to indemnify, defend and hold the Mortgage
Loan Seller and its successors and assigns harmless
from and against any and all losses, liabilities,
damages, injuries, penalties, fines, expenses, and
claims of any kind whatsoever (including attorney's
fees and costs) paid, incurred or suffered by, or
asserted against, any such party resulting from a
breach of environmental representations, warranties
or covenants given by the Mortgagor in connection
with such Mortgage Loan.
(xlvii) Additional Insurance. Each Mortgage Loan requires
that the Mortgaged Property be covered by the
following insurance policies naming the Mortgagee and
its successors and assigns as additional insured, in
an amount at least equal to the lesser of the value
of the replacement cost of the related Mortgaged
Property or the principal balance of the related
Mortgage Loan, and sufficient to avoid the operation
of any co-insurance provisions: (A) fire and extended
perils (included within the classification "All Risk
of Physical Loss"), (B) 12 months of business
interruption or rental loss insurance, (C) flood
insurance if, based solely on a flood zone
certification or a survey of the related Mortgaged
Property, the property improvements are located in a
100-year flood plain, or if any portion of the
improvements on the Mortgaged Property is located in
a federally designated flood area "A" and (D)
comprehensive general liability insurance in amounts
generally required by institutional lenders for
similar properties. All premiums on such insurance
policies required to be paid as of the Cut-off Date
have been paid; such insurance policies may not be
terminated or cancelled without 30 days prior written
notice to the insured (for defaults other than
non-payment, for which there is a minimum of 10 days
written notice of cancellation) and no such notice
has been received by the insured. The insurance
provider of each such insurance policy has an A.M.
Best's rating of at least "A:X" or a claims paying
ability rating of
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at least "A" from Standard & Poor's or its
equivalent. Other than the Credit Tenant Loans, each
related Mortgage Loan obligates the related Mortgagor
to maintain all such insurance and, at such
Mortgagor's failure to do so, authorizes the
mortgagee to maintain such insurance at the
Mortgagor's cost and expense and to seek
reimbursement therefor from such Mortgagor.
(xlviii) Application of Insurance and Condemnation Proceeds.
Any insurance proceeds in respect of a casualty loss
or taking, will be applied either to (A) the repair
or restoration of all or part of the related
Mortgaged Property or (B) to the payment of the
outstanding principal balance of such Mortgage Loan
together with any accrued interest thereon, except
that in the case of a ground-leased property casualty
and condemnation proceeds are required to be paid
first to the owner of the fee interest in the related
property in accordance with terms of the related
ground lease and then in accordance with the related
Mortgage.
(xlix) Terms of Mortgage. The Mortgage Loan is directly
secured by a Mortgage on a commercial, industrial,
self-storage, health-care related, hospitality,
mobile home park or multifamily residential property,
and either (A) substantially all of the proceeds of
the Mortgage Loan were used to acquire, improve or
protect an interest in such real property which, as
of the origination date, was the sole security for
such Mortgage Loan (unless the Mortgage Loan has been
modified in a manner that constituted a deemed
exchange under Section 1001 of the Code at a time
when the Mortgage Loan was not in default or default
with respect thereto was not reasonably foreseeable)
or (B) the fair market value of such real property
was at least equal to 80% of the principal amount of
the Mortgage Loan (1) at origination (or if the
Mortgage Loan has been modified in a manner that
constituted a deemed exchange under Section 1001 of
the Code at a time when the Mortgage Loan was not in
default or default with respect thereto was not
reasonably foreseeable, the date of the last such
modification) or (2) at the Closing Date; provided
that the fair market value of the real property
interest must first be reduced by (I) the amount of
any lien on the real property interest that is senior
to the Mortgage Loan (unless such senior lien also
secures a Mortgage Loan, in which event the
computation described in clauses (1) and (2) shall be
made on an aggregate basis) and (II) a proportionate
amount of any lien that is in parity with the
Mortgage Loan (unless such other lien secures a
Mortgage Loan that is cross-collateralized with such
Mortgage Loan, in which event the computation
described in clauses (B)(1) and (B)(2) shall be made
on an aggregate basis.
(l) Appraisal. The Mortgage File contains an appraisal of
the related Mortgaged Property, which appraisal is
signed by a qualified appraiser, who, to the best of
the Mortgage Loan Seller's knowledge, had no
interest, direct or indirect, in the Mortgaged
Property or the Mortgagor or in any
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loan made on the security thereof, and whose
compensation is not affected by the approval or
disapproval of the Mortgage Loan; the appraisal and
appraiser both satisfy the requirements of the
"Uniform Standards of Professional Appraisal
Practice" as adopted by the Appraisal Standards Board
of the Appraisal Foundation, all as in effect on the
date the Mortgage Loan was originated.
(li) Credit Tenant Loans. With respect to each Mortgage
Loan which is identified as a Credit Tenant Loan on
Exhibit F attached hereto:
(A) the base rental payments under each Credit Lease
are equal to or greater than the payments due
under the Mortgage Loan Documents executed in
connection with the related Credit Tenant Loan
and are payable without notice or demand, and
without setoff, counterclaim, recoupment,
abatement, reduction or defense and, subject to
the rights of the Tenant to terminate the Credit
Lease or offset, abate, suspend or otherwise
diminish any amounts payable by the Tenant under
the Credit Lease;
(B) except as set forth in Exhibit D, either (1) the
obligations of the Tenant under each Credit
Lease, including, but not limited to, the
obligation of the Tenant to pay fixed and
additional rent, are not affected by reason of
any damage to or destruction of any portion of
the related Credit Tenant Property; any taking
of such Credit Tenant Property or any part
thereof , by condemnation or otherwise or any
prohibition, limitation, interruption,
cessation, restriction, prevention or
interference of the Tenant's use, occupancy or
enjoyment of such Credit Tenant Property, (2)
with respect to each Credit Lease listed on
Schedule I hereto, a Lease Enhancement Policy
has been obtained or (3) with respect to
condemnation, the Tenant is required to make a
rejectable purchase offer for a purchase price
that is greater than the then outstanding
principal balance secured by the Mortgage;
(C) every obligation associated with managing,
owning, developing and operating the Credit
Tenant Property, including, but not limited to,
the costs associated with utilities, taxes,
insurance, capital and structural improvements,
maintenance and repairs is an obligation of the
Tenant;
(D) no Mortgagor has any monetary obligations under
any Credit Lease that have not been met, or any
material nonmonetary obligations under any Credit
Lease the breach of which would result in either
the abatement of rent, a right of setoff or the
termination of the related Credit Lease;
(E) except as set forth in Exhibit D, no Tenant can
terminate any Credit Lease for any reason
(except for a default by the related Mortgagor
under the Credit Lease) prior to the payment in
full of (1) the principal
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balance of the related Credit Tenant Loan, (2)
all accrued and unpaid interest on such Credit
Tenant Loan and (3) any other sums due and
payable under such Credit Tenant Loan or, if a
Tenant can terminate any Credit Lease as a
result of a casualty or condemnation, a Lease
Enhancement Policy has been obtained; or if a
Tenant can terminate the Credit Lease with
respect to a condemnation, the Tenant must make
a rejectable purchase offer for a purchase price
that is greater than the then outstanding
principal balance secured by the Mortgage;
(F) if a Tenant assigns its Credit Lease or sublets
the related Credit Tenant Property, such Tenant
remains primarily obligated under such Credit
Lease;
(G) each Tenant has agreed to indemnify the related
landlord from any claims of any nature (1) to
which such landlord is subject because of such
landlord's estate in the leased property or (2)
arising from (I) injury to or death of any
person or damage to or loss of property on the
related Credit Tenant Property or connected with
the use, condition or occupancy of the related
Credit Tenant Property, (II) Tenant's violation
of the related Credit Lease, (III) any act or
omission of Tenant or (IV) any environmental or
hazardous material affecting the property
created by the Tenant;
(H) if the obligations of the Tenant under any Credit
Lease are guaranteed by a guarantor pursuant to a
guaranty, the guaranty states that it represents
the unconditional obligation of the guarantor and
is a guarantee of payment, not merely of
collection;
(I) to the Mortgage Loan Seller's knowledge, each
Credit Lease contains customary and enforceable
provisions which render the rights and remedies
of the lessor thereunder adequate for the
enforcement and satisfaction of the lessor's
rights thereunder;
(J) to the Mortgage Loan Seller's knowledge, in
reliance on a Tenant estoppel certificate and
representations made by the Tenant under the
Credit Lease or representations made by the
related Mortgagor under the Loan Documents, as
of the date of origination of each Credit Tenant
Loan (1) each Credit Lease was in full force and
effect, and no default by the related Mortgagor
or any Tenant has occurred under the Credit
Lease, nor is there any existing condition
which, but for the passage of time or the giving
of notice, or both, would result in a default
under the terms of the Credit Lease, (2) none of
the terms of the related Credit Lease have been
impaired, waived, altered or modified in any
respect (except as described in the related
Tenant estoppel), (3) no Tenant has been
released, in whole or in part, from its
obligations under the related Credit Lease, (4)
there is no right of rescission, offset,
abatement, diminution, defense or counterclaim to
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any Credit Lease, nor will the operation of any
of the terms of any Credit Lease, or the exercise
of any rights thereunder, render the Credit Lease
unenforceable in whole or in part, or subject it
to any right of rescission, offset, abatement,
diminution, defense or counterclaim and no such
right of rescission, offset, abatement,
diminution, defense or counterclaim has been
asserted with respect thereto and (5) each Credit
Lease has a term ending on or after the Maturity
Date (or Anticipated Repayment Date) of the
related Credit Tenant Loan;
(K) to the Mortgage Loan Seller's knowledge, the
related Credit Tenant Property is not subject to
any lease other than the related Credit Lease, no
Person has any possessory interest in, or right
to occupy, the such Credit Tenant Property except
under and pursuant to such Credit Lease, and the
related Credit Tenant or an affiliate is in
occupancy of the such Credit Tenant Property;
(L) the Mortgage Loan Seller is entitled to notice of
any event of default from the Tenant under a
Credit Lease;
(M) each Tenant under a Credit Lease is required to
make all rental payments directly to the Mortgage
Loan Seller, its successors and assignees under
the related Credit Tenant Loan;
(N) each Credit Tenant Loan provides that the related
Credit Lease cannot be modified without the
consent of the holder of the Mortgage Loan
thereunder;
(O) either (1) each Credit Tenant Loan fully
amortizes over its original term and there is no
"balloon" payment due under the Credit Tenant
Loan or (2) a Residual Value Policy has been
obtained with respect to such Credit Tenant Loan;
(P) the related Credit Tenant Property has a
permanent certificate of occupancy (or its
equivalent in jurisdictions that do not provide
for the issuance of certificates of occupancy)
and the Tenant has commenced making lease
payments.
(Q) each Tenant has delivered an estoppel verifying
the rents and terms of the related lease,
acknowledging that no rent has been paid in
advance, and an estoppel and/or a subordination
and nondisturbance agreement agreeing to attorn
to the holder of the Mortgage Loan.
(lii) Residual Value and Lease Enhancement Insurance Policy
With Respect to Credit Tenant Loans. With respect to
any Credit Tenant Loan for which a Residual Value
Policy or a Lease Enhancement Policy (collectively,
the
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"Policies") has been obtained, and which are
identified on Exhibit D attached hereto:
(A) Each Credit Tenant Loan in connection with which
the related Credit Lease may be terminated upon
the occurrence of a casualty or condemnation has
a noncancellable Lease Enhancement Policy from
Chubb Custom Insurance Company ("Chubb") or
Lexington Insurance Company ("Lexington"). The
Chubb Lease Enhancement Policy in effect for each
related Credit Tenant Loan is the "7/98" version.
The Lexington Lease Enhancement Policy in effect
for each related Credit Tenant Loan was issued in
1998 and the policy number is 63241(4-95).
(B) Each Credit Tenant Loan in connection with which
the related Credit Lease will have a balloon
payment due at maturity has a non-cancellable
Residual Value Policy, from R.V.I. American
Insurance Company ("RVI") or Financial Structures
Limited ("FSL"). The RVI Residual Value Policy in
effect for each related Credit Tenant Loan is the
"Single 1.1" policy and the FSL Residual Value
Policy in effect for each related Credit Tenant
Loan was issued in 1998.
(C) The Trustee and its assigns are designated as the
loss payee under each related Policy. All claims
proceeds are payable to the loss payee.
(D) Payment under each Policy will be made at least
within 15 days of notification of a claim.
(E) The premium for each Policy has been paid in full
as of the Policy effective date for the related
Policy and the Policy cannot be terminated prior
to the termination date.
(F) The effective date for each Policy with respect
to each Credit Tenant Loan is on or prior to the
Closing Date.
(G) The termination date for each Policy with respect
to each Credit Tenant Loan is the date upon which
the outstanding principal balance of the Credit
Tenant Loan is reduced to zero.
(H) The insured amount for each such Policy is what
the applicable provider will pay to the loss
payee upon notification of a claim and is at
least equal to the outstanding principal balance
of the related Mortgage Note at the time the
claim is made plus all accrued interest.
(I) The Policy cannot be amended without the prior
written consent of the Trustee.
(liii) ARD Loans. If such Mortgage Loan is an ARD Loan it
provides that:
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(A) Except as set forth in Exhibit D, its Mortgage
Rate will increase by no more than two percentage
points from and after its Anticipated Repayment
Date;
(B) its Anticipated Repayment Date is not less than
seven years following the origination of such
Mortgage Loan;
(C) either (a) on the Closing Date, each ARD Loan
will have a lockbox in place, or (b) no later
than the related Anticipated Repayment Date, if
it has not previously done so, the related
Mortgagor is required to enter into a "lockbox
agreement" whereby all revenue from the related
Mortgaged Property shall be deposited directly
into a designated account controlled by the
Servicer;
(D) any cash flow from the related Mortgaged Property
that is applied to amortize an ARD Loan following
its Anticipated Repayment Date shall, to the
extent such net cash flow is in excess of the
monthly payment payable therefrom, be net of
budgeted capital expenditures and capital
expenditures that may be approved by the Servicer
in accordance with the terms of the Pooling and
Servicing Agreement.
(E) each ARD Loan is being amortized as of the
Cut-off Date and is not currently subject to an
interest-only period;
(F) the holder of each ARD Loan may not exercise
default remedies if Mortgagor pays scheduled
principal and interest (at the related Mortgage
Rate);
(G) The property manager cannot be removed for the
sole reason that the ARD Loan continues to be
outstanding after its Anticipated Repayment Date.
(liv) Bondable Leases. With respect to each Credit Tenant
Loan identified on Exhibit F as being secured by a
Mortgaged Property with one or more Bondable Leases,
each Bondable Lease is subject to the following
conditions:
(A) The rental payments under the related Bondable
Lease are equal to or greater than the payments
due under the related Mortgage Note and Mortgage,
and are payable without notice or demand, and
without setoff, counterclaim recoupment,
abatement, reduction or defense.
(B) There is no right of rescission, offset,
abatement, diminution, defense or counterclaim to
any Bondable Lease, in whole or in part, and no
such right of rescission, offset, abatement,
diminution, defense or counterclaim has been
asserted with respect thereto;
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(C) The obligations of the Tenant under the related
Bondable Lease, including, but not limited to,
the obligation of the Tenant to pay fixed and
additional rent, are not affected by reason of:
(w) any damage to or destruction of any portion
of the related Credit Tenant Property; (x) taking
of the related Credit Tenant Property or any part
thereof by condemnation or otherwise; (y) any
prohibition, limitation, interruption, cessation,
restriction, prevention or interference of the
Tenant's use, occupancy or enjoyment of the
related Credit Tenant Property or (z) with
respect to condemnation, the Tenant is required
to make a rejectable purchase offer for a
purchase price that is greater than the
outstanding principal balance of the Mortgage
Loan.
(D) The landlord does not have any monetary
obligations under the related Bondable Lease, and
every monetary obligation associated with the
managing, owning, developing and operating the
related Credit Tenant Property, including, but
not limited to, the costs associated with
utilities, taxes, insurance, maintenance and
repairs is an obligation of the Tenant.
(E) The landlord does not have nonmonetary obligation
sunder the related lease, except for the delivery
of possession of the related leased property.
(F) The landlord has not made any representation or
warranty under the related lease that would
impose any monetary obligation upon the landlord
or result in the termination of the related
lease.
(G) The Tenant cannot terminate the related Bondable
Lease for any reason other than condemnation of
the related Mortgaged Property, prior to the
payment in full of:
(1) The principal balance of the
Mortgage Loan;
(2) All accrued and unpaid interest on
the Mortgage Loan; and
(3) Any other sums due and payable
under the Mortgage Loan, as of
termination date, which date is a
rent payment date, except for a
default by the landlord under the
related lease.
(H) The Tenant has agreed to indemnify the landlord
from any claims of any nature:
(1) To which the landlord is subject
because of the landlord's estate in
the related Credit Tenant Property,
or
(2) Arising from
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(I) Injury to or death of any person or
damage to or loss of property on
the related leased property or
connected with the use, condition
or occupancy o the related leased
property,
(II) The Tenant's violation of the
related lease,
(III) Any act or omission of the Tenant
or
(IV) Any environmental or hazardous
material affecting the related
property.
(lv) Health Care Facilities. With respect to a Mortgage
Loan secured by a nursing home or skilled living
facility:
(A) To the best of the Mortgage Loan Seller's
knowledge, the health care facility located on
the related Mortgaged Property and the related
owner and/or operator with respect to such
facility had all material certificates, licenses
and permits required by applicable law for the
operation of such facility for its current use
and, to the extent that such facility
participates in Medicaid, Medicare, or any other
similar third party payor program, the facility,
the owner and/or the operator possesses current
provider agreements for such programs,
appropriate for the degree of care administered
at each facility.
(B) To the best of the Mortgage Loan Seller's
knowledge, the related owner or operator, with
respect to the related Mortgaged Property or its
operation of the related Mortgaged Property, was
in compliance in all material respects with all
applicable laws, regulations, quality and safety
standards and requirements of the applicable
state department of health, and the Mortgage Loan
Documents require that so long as the Mortgage
Loan remains outstanding the related Mortgaged
Property shall be operated in compliance in all
material respects with such applicable laws and
requirements.
(C) The related Mortgage Loan Documents provide that:
(1) so long as the Mortgage Loan remains
outstanding, the related Mortgaged
Property shall be operated in such a
manner that the licenses, permits and
authorizations shall remain in full
force and effect,
(2) without the lender's consent, the
licenses, permits and authorizations may
not be
(I) transferred to any location
other than the Mortgaged
Property
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(II) pledged as collateral for any
other loan or indebtedness
(3) so long as the related Mortgage Loan
remains outstanding, the Mortgagor may
not without the lender's consent
(I) rescind, withdraw, revoke,
amend, modify, supplement or
otherwise alter the nature or
scope of the certificate of
need for the related Mortgaged
Property.
(II) amend or otherwise reduce the
related Mortgaged Property's
authorized bed capacity and/or
the number of beds approved by
the applicable state
department of health,
(III) replace or transfer all or any
part of any related Mortgaged
Property's beds to an other
site or location or
(IV) terminate, materially modify,
or materially amend the
operating lease or management
contract in effect with regard
to the related Mortgaged
Property.
(4) as of the Cut-off Date, the Mortgage
Loan Seller has not received notice that
the related owner or related operator as
the case may be, has failed to file
within the time permitted, including any
extensions thereof, all such Medicare,
Medicaid or other similar program cost
reports;
(5) except as set forth in Exhibit D, as of
the Cut-off Date, the Mortgage Loan
Seller has not received notice that
either the related owner or operator, as
the case may be, with respect to the
related Mortgaged Property, or its
operation of such Mortgaged Property,
(A) is subject to a material audit
adjustment with respect to its
participation in any third-party payor
program or (B) has not been notified
that any managed care or other
third-party payor program contract is
being or has been canceled, not renewed,
or downgraded in any material respect or
that any such action is pending,
threatened, or contemplated.
(lvi) Mortgage Loan Not Originated by Mortgage Loan Seller.
With respect to each Mortgage Loan originated by a
correspondent of the Mortgage Loan Seller and
purchased or "table funded" by the Mortgage Loan
Seller in connection with a correspondent
relationship with such originator:
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(A) such Mortgage Loan was underwritten substantially
in accordance with standards established by the
Mortgage Loan Seller, (which standards are in all
material respects the same as the underwriting
standards for Mortgage Loans originated by the
Mortgage Loan Seller);
(B) the Mortgage Loan was originated by the Mortgage
Loan originator pursuant to an ongoing, standing
relationship with the Mortgage Loan Seller;
(C) the closing documents (which include assignment
documents executed by the Mortgage Loan
originator in favor of the Mortgage Loan Seller
at the time of the closing of the Mortgage Loan)
for the Mortgage Loan were prepared in
substantial compliance with forms approved by the
Mortgage Loan Seller, and reflect the Mortgage
Loan Seller as the successor and assign to the
Mortgage Loan originator; and
(D) such Mortgage Loan either was actually funded by
and assigned to the Mortgage Loan Seller at the
closing thereof, or was funded initially by the
Mortgage Loan originator at the closing thereof
and then acquired by the Mortgage Loan Seller
from such Mortgage Loan originator pursuant to
its ongoing, standing relationship with the
Mortgage Loan Seller.
(lvii) Origination. Each Mortgage Loan originated by the
Mortgage Loan Seller was underwritten consistent in
all material respects with the standards of the
Mortgage Loan Seller as then in effect and each
Mortgage Loan purchased by the Mortgage Loan Seller
from a third-party originator was underwritten
consistent in all material respects with prudent
commercial mortgage conduit lending standards.
(lviii) Waivers. The Mortgage Loan Seller and, to the
Mortgage Loan Seller's knowledge, any prior holder of
the Mortgage Loan has not waived any default, breach,
violation or event of acceleration under the related
Mortgage or Mortgage Note.
(lix) Qualification. To the extent required under
applicable law as of the Closing Date and necessary
for the enforceability or collectibility of the
Mortgage Loan, the originator of such Mortgage Loan
was authorized to do business in the jurisdiction in
which the related Mortgaged Property is located at
all times when it held the Mortgage Loan.
3.3. Remedies for Breach of Certain Representations and
Warranties. (a) It is understood and agreed that the representations and
warranties set forth herein shall survive the sale of the Mortgage Loans to the
Purchaser, notwithstanding any restrictive or qualified endorsement on the
Mortgage Notes and notwithstanding subsequent termination of this Agreement or
the Pooling and Servicing Agreement, and shall inure to the benefit of the
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Purchaser, and the Trustee as the transferee of the Purchaser, notwithstanding
(1) any restrictive or qualified endorsement on any Mortgage Note, assignment of
Mortgage, Assignment of Leases, Rents and Profits or reassignments thereof (2)
any termination of this Agreement or (3) the examination by any Person of, or
failure by any Person to examine, any Mortgage File. It is further understood
and agreed that the representations and warranties set forth in Section 3.2(b)
do not cover any mortgage loans sold to the Purchaser by any other Person.
(b) Upon the receipt of notice or discovery by the Mortgage
Loan Seller, the Purchaser or the Trustee that (i) a document required to be
delivered, recorded or filed pursuant to Section 2.4 of this Agreement in
connection with any Mortgage Loan has not been executed or received, has not
been recorded or filed (if required), appears not to be what it purports to be
or has been torn, mutilated or otherwise defaced prior to the delivery thereof
(such Mortgage Loan, a "Defective Document Mortgage Loan") or (ii) a breach of
any of the foregoing representations and warranties (other than the
representations and warranties set forth in Sections 3.1(a) and 3.2(a)) (a
"Breach") which, in the case of either clause (i) or (ii), materially and
adversely affects the value of any Mortgage Loan or the interests of the
Certificateholders therein, the party discovering (x) that a Mortgage Loan is a
Defective Document Mortgage Loan or (y) the existence of a Breach (any such
Mortgage Loan as described in the preceding clause (x) or so affected by a
Breach as described in clause (y), a "Defective Mortgage Loan") shall give
prompt written notice thereof to the other parties. Within 90 days of the
earlier of its discovery or its receipt of notice of any such Defective Mortgage
Loan, the Mortgage Loan Seller shall at its option either (i) promptly cure such
defect or Breach in all material respects; provided, however, that the Mortgage
Loan Seller will have an additional 90-day period to cure such defect or Breach
if it is diligently proceeding with such cure, and has delivered to the Trustee,
the Servicer and each Rating Agency an officer's certificate with all relevant
correspondence and communication in the possession of the Mortgage Loan Seller
as of the date thereof relating to such Defect or Breach that describes the
reasons that a cure was not effected within the first 90-day cure period and the
actions it proposes to take to effect such cure and which states that it
anticipates such cure will be effected within the additional 90-day period or
(ii) repurchase each Defective Mortgage Loan at the Repurchase Price for such
Mortgage Loan. The payment of the Repurchase Price with respect to any Mortgage
Loans repurchased by the Mortgage Loan Seller shall be paid in accordance with
the directions of the owners of such Mortgage Loans. It is understood and agreed
that the obligations of the Mortgage Loan Seller set forth in this Section
3.3(b) to cure or repurchase a Defective Mortgage Loan constitute the sole
remedies available to the Purchaser and its successors and assigns respecting a
Defective Mortgage Loan. Upon any such repurchase of a Mortgage Loan by the
Mortgage Loan Seller, the Purchaser shall execute and deliver (or shall cause
the Trustee to execute and deliver) such instruments of transfer or assignment
presented to it by the Mortgage Loan Seller, in each case without recourse, as
shall be necessary to vest in the Mortgage Loan Seller the legal and beneficial
ownership of such Mortgage Loan (including any property acquired in respect
thereof or proceeds of any insurance policy with respect thereto) and the
related rights under each agreement which were assigned pursuant to Section 3.7
hereof, and shall deliver the related Mortgage File to the Mortgage Loan Seller
or its designee after receipt of the related Repurchase Price.
(c) Except as expressly set forth in Section 3.3(b), no
provision of this Agreement shall be interpreted as limiting (or otherwise be
deemed to limit) the Purchaser's right
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<PAGE>
to pursue any remedies it may have under this Agreement, in equity or at law, in
connection with any breach by the Mortgage Loan Seller of any term hereof.
(d) The Mortgage Loan Seller hereby acknowledges the
assignment by the Purchaser to the Trustee, as trustee under the Pooling and
Servicing Agreement, for the benefit of the Certificateholders, of the
representations and warranties contained herein and of the obligation of the
Mortgage Loan Seller to cure or repurchase Defective Mortgage Loans pursuant to
this Section. The Trustee or its designee may enforce such obligation as
provided in Section 5.3 hereof.
(e) The Mortgage Loan Seller hereby acknowledges and agrees
that, pursuant to Section 2.03(e) of the Pooling and Servicing Agreement, the
Servicer and the Special Servicer (in the case of Specially Serviced Mortgage
Loans) have the right, for the benefit of the Certificateholders, to enforce the
obligations of the Mortgage Loan Seller under this Section 3.3. The Servicer and
the Special Servicer, as the case may be, shall be reimbursed for the reasonable
costs of such enforcement from a specific recovery of costs, expenses or
attorneys' fees against the applicable Mortgage Loan Seller first, from a
specific recovery of costs, expenses or attorneys' fees against the Mortgage
Loan Seller ordered or awarded pursuant to an adjudication and second, from the
Purchase Price (as defined in the Pooling and Servicing Agreement) in the manner
contemplated by Section 2.03(e) of the Pooling and Servicing Agreement.
3.4. Opinions of Counsel. The Mortgage Loan Seller hereby
covenants to the Purchaser to, simultaneously with the execution hereof, deliver
or cause to be delivered to the Purchaser (a) opinions of counsel as to various
corporate matters in form satisfactory to the Purchaser (it being agreed that
the opinion shall expressly provide that the Trustee and the Fiscal Agent shall
be entitled to rely on such opinions); and (b) opinions of counsel for the
Mortgage Loan Seller, in form acceptable to the Purchaser, its counsel, and each
Rating Agency, as to such matters as shall be required for the assignment of the
ratings of the Certificates and otherwise as required by the Certificate
Purchase Agreement and the Underwriting Agreement (it being agreed that such
opinions or appropriate reliance letters shall expressly provide that the
Trustee and the Fiscal Agent shall be entitled to rely on such opinions).
3.5. Underwriting. The Mortgage Loan Seller hereby agrees to
furnish any and all information, documents, certificates, letters or opinions
with respect to the Mortgage Loans reasonably requested by the Purchaser in
order to perform any of its obligations or satisfy any of the conditions on its
part to be performed or satisfied pursuant to the Certificate Purchase Agreement
and the Underwriting Agreement at or prior to the Closing Date.
3.6. Further Assurances; Securitization Cooperation. The
Mortgage Loan Seller agrees to execute and deliver such instruments and take
such actions as the Purchaser may, from time to time, reasonably request in
order to effectuate the purpose and to carry out the terms of this Agreement and
to effectuate the securitization of the Mortgage Loans pursuant to the Pooling
and Servicing Agreement and to carry out its obligations under the Pooling and
Servicing Agreement.
3.7 Assignment of Purchase Agreement. The Mortgage Loan Seller
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged,
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<PAGE>
hereby grants, sells, transfers, assigns, delivers, sets-over and conveys to the
Purchaser all the right, title and interest of the Mortgage Loan Seller in, to
and under the Mortgage Loans pursuant to each agreement between the Mortgage
Loan Seller and the originators of the Mortgage Loans (where such originators
are Persons other than the Mortgage Loan Seller) pursuant to which the Mortgage
Loan Seller acquired rights in such Mortgage Loan (which agreements are set
forth on Schedule I attached hereto), including, without limitation, all of the
Mortgage Loan Seller's right, title and interest in any claims, insurance
policies, escrow accounts, demands, causes of action and any other collateral
arising out of and/or executed and/or delivered in or to, together with any
other documents or instruments executed and/or delivered in connection with or
otherwise related to the Mortgage Loans, without recourse, representation or
warranty except as set forth herein.
[End of Article III]
ARTICLE IV.
CLOSING CONDITIONS
4.1. Purchaser's Conditions to Closing. The obligations of the
Purchaser under this Agreement shall be subject to the satisfaction, on the
Closing Date, or such other date specified herein, of the following conditions:
(a) The obligations of the Mortgage Loan Seller required to be
performed by it at or prior to the Closing Date pursuant to the terms of this
Agreement shall have been duly performed and complied with and all of the
representations and warranties of the Mortgage Loan Seller under this Agreement
shall be true and correct as of the date hereof and as of the Closing Date, and
no event shall have occurred which, with notice or the passage of time, or both,
would constitute a default under this Agreement, and the Purchaser shall have
received a certificate to that effect signed by an authorized officer of the
Mortgage Loan Seller.
(b) The Purchaser or its designee shall have received all of
the following closing documents, in such forms as are agreed upon and acceptable
to the Purchaser and in form and substance satisfactory to the Purchaser, the
Underwriters and their respective counsel, duly executed (except in the case of
(i) and (ii)) by all signatories other than the Purchaser as required pursuant
to the respective terms thereof:
(i) with respect to each Mortgage Loan, the related Mortgage
File, which Mortgage File shall be delivered to and held by the Trustee
on behalf of the Purchaser;
(ii) the final Mortgage Loan Schedule attached hereto as
Exhibit A;
(iii) an officer's certificate from the Mortgage Loan Seller
dated as of the Closing Date, in the form attached hereto as Exhibit B;
(iv) an opinion of , counsel to the Mortgage
-------------
Loan Seller, substantially in the form attached hereto as Exhibit C;
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<PAGE>
(v) such other opinions of counsel as the Mortgage Loan
Seller, the Depositor or the Underwriters may require;
(vi) the Supplemental Mortgage Loan Purchase and Sale
Agreement, dated as of June 1, 1999, by and between the Mortgage Loan
Seller and the Purchaser.
(vii) the PW Mortgage Loan Purchase and Sale Agreement, duly
executed and delivered.
(viii) such other documents, certificates and opinions as may
be necessary to secure for the Certificates the ratings from Moody's
Investors Services, Inc. ("Moody's") and Fitch IBCA, Inc. ("Fitch
IBCA") set forth in clause (ix) of this section 4.1(b);
(ix) Letters from Moody's and Fitch IBCA showing the following
ratings: for the Class A-1 Certificates, a "Aaa" rating from Moody's
and a "AAA" rating from Fitch IBCA; for the Class A-2 Certificates, a
"Aaa" rating from Moody's and a "AAA" rating from Fitch IBCA; for the
Class X Certificates, a "Aaa" rating from Moody's and a "AAA" rating
from Fitch IBCA; for the Class B Certificates, a "Aa2" rating from
Moody's and a "AA" rating from Fitch IBCA; for the Class C
Certificates, a "A2" rating from Moody's and a "A" rating from Fitch
IBCA; for the Class D Certificates, a "Baa2" rating from Moody's and a
"BBB" rating from Fitch IBCA; for the Class E Certificates, a "Baa3"
rating from Moody's and a "BBB-" rating from Fitch IBCA; for the Class
F Certificates, a "Ba2" rating from Moody's; for the Class G
Certificates, a "B2" rating from Moody's; for the Class H Certificates,
a "B3" rating from Moody's.
(x) a letter from the independent accounting firm of
PriceWaterhouseCoopers, LLC in form satisfactory to the Purchaser,
relating to certain information regarding the Mortgage Loans as set
forth in the Prospectus and the Prospectus Supplement and certain
information regarding the Certificates as set forth in the Prospectus
and the Prospectus Supplement.
4.2. Mortgage Loan Seller's Condition to Closing. The
obligations of the Mortgage Loan Seller under this Agreement shall be subject to
the satisfaction, on the Closing Date, to the Purchaser's compliance with all of
the Purchaser's obligations under this Agreement.
[End of Article IV]
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ARTICLE V.
MISCELLANEOUS
5.1. Costs. (a) The Purchaser shall pay all expenses
incidental to the performance of its obligations under this Agreement, including
without limitation (i) fees for title policy endorsements and continuations or
any recordation expenses for all documents to be recorded, including without
limitation, the assignments of the Mortgages and the assignments of the
Assignments of Leases and any other documentation requested by the Purchaser as
further assurance of the transactions contemplated herein, (ii) the expenses of
preparing, printing and reproducing (A) the Memorandum with respect to the
Privately Placed Certificates and the Prospectus Supplement with respect to the
Publicly Offered Certificates, (B) the Purchase Agreement, (C) the Pooling and
Servicing Agreement and (D) the Certificates, (iii) the cost of delivering the
Privately Placed Certificates to the office of the Placement Agent or the
Purchaser, as applicable, insured to the satisfaction of the Placement Agent or
the Purchaser, as applicable and (iv) the cost of delivering the Publicly
Offered Certificates to the office of the Underwriter.
(b) The Mortgage Loan Seller shall pay or cause to be paid to
the Purchaser its Allocable Share of the Purchaser's out-of-pocket expenses
allocable to the Mortgage Loans, including, but not limited to the Purchaser's
attorneys' fees and expenses.
5.2. Indemnification and Contribution: (a) The Mortgage Loan
Seller shall indemnify and hold harmless the Purchaser, the directors, officers,
employees and agents of the Purchaser, and each person who controls the
Purchaser 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 Prospectus (in preliminary or
final form), or in any amendment thereof or supplement thereto, 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,
in the light of the circumstances under which they were made, not misleading,
but only to the extent such untrue statement, alleged untrue statement, omission
or alleged omission arises out of or is based upon any information provided by
or on behalf of the Mortgage Loan Seller to the Purchaser with respect to the
Mortgage Loans or itself (collectively, and as further described below, the
"Mortgage Loan Seller Information"), and the Mortgage Loan Seller shall
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided, however,
that the Mortgage Loan Seller's agreement to indemnify and reimburse the
Underwriters, their respective officers and directors, or any person controlling
the Underwriters under this Section 5.2 shall not apply to any loss, claim,
damage, liability or expense arising out of or relating to claims asserted by
any person who purchased any registered Certificates pursuant to the Preliminary
Prospectus Supplement that are the subject of such claims if such person did not
receive a copy of the Prospectus Supplement upon or before settlement of the
sale or such registered Certificates to such Person, in any case where the
untrue statement or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact contained
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in such Preliminary Prospectus Supplement which was the basis of any such claim
was corrected in the Prospectus Supplement and provided, further, that the
indemnification provided by this Section 5.2 shall not apply to the extent that
such untrue statement or omission was made as a result of an error in any
aggregation (other than an aggregation made by the Mortgage Loan Seller or an
aggregation contained in tabular information provided by the Mortgage Loan
Seller) of, the information regarding the Mortgage Loans, the related Mortgagor
and the related Mortgaged Properties with comparable information relating to
other mortgage loans conveyed by other mortgage loan sellers. This indemnity
agreement will be in addition to any liability which the Mortgage Loan Seller
may otherwise have. For all purposes of this Agreement, and notwithstanding
anything herein contained to the contrary, the Mortgage Loan Seller Information
includes, and is limited to, (i) the representations and warranties of the
Mortgage Loan Seller set forth in Section 2 herein, (ii) summaries of the
individual Mortgage Loans and any letters, certifications and other materials
furnished to the Purchaser by the Mortgage Loan Seller relating to the Mortgage
Loans, (iii) reports of environmental assessments of the related Mortgaged
Properties, (iv) reports of site inspections of the related Mortgaged
Properties, (v) all information and documentation relating to the Mortgage Loans
and included in the investor and Rating Agencies due diligence files and any
documents or information relating to the Mortgage Loans and provided by the
Mortgage Loan Seller or any of its affiliates to potential investors, including
but not limited to Mortgage Loan legal, underwriting and servicing documents and
information, (vi) the information regarding the Mortgage Loans, property
managers and the Mortgage Loan Seller set forth in the Prospectus and in any
amendment thereof or supplement thereto, and (vii) any computer diskettes,
computer tapes and/or other electronic media containing (A) the information on
the Mortgage Loan Schedule, and (B) information regarding the Mortgage Loans
provided to the Depositor or any Underwriter and used in preparing Computational
Materials (as such term is defined in the no-action letter issued by the staff
of the Securities and Exchange Commission (the "SEC"), dated May 20, 1994 to
Kidder, Peabody Acceptance Corporation I), Collateral Term Sheets, ABS Term
Sheets, and/or Structural Term Sheets (as such terms are defined in the
no-action letter issued by the SEC, dated February 17, 1995 to the Public
Securities Association.
(b) The Purchaser shall indemnify and hold harmless the
Mortgage Loan Seller, its directors, officers, employees and agents, and each
person, if any, who controls the Mortgage Loan 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 Prospectus (in preliminary or final form), or in any amendment
thereof or supplement thereto, 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 the such untrue
statement, alleged untrue statement, omission or alleged omission is based upon
the Mortgage Loan Seller Information, and the Purchaser shall reimburse each
such indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage,
39
<PAGE>
liability or action. This indemnity agreement will be in addition to any
liability which the Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 5.2 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 5.2, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party under this Section 5.2, except to the extent that it has been
prejudiced in any material respect, or from any liability which it may have,
otherwise than under this Section 5.2. 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 reasonably
satisfactory to such indemnified party; provided 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 which
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 to such indemnified party for
expenses incurred by the indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with one local counsel, if applicable), approved by
the Purchaser in the case of subsection (a), representing the indemnified
parties under subsection (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 in writing 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 be only in respect of the counsel referred
to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 5.2
shall for any reason be unavailable in accordance with its terms to an
indemnified party under this Section 5.2, then the Mortgage Loan Seller and the
Purchaser shall contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above, in such proportion as is appropriate to reflect (i)
the relative benefits received by the Mortgage Loan Seller on the one hand and
the Purchaser on the other from the purchase and sale of the Mortgage Loans and
the offering of the Certificates and (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as
40
<PAGE>
is appropriate to reflect not only the relative benefits referred to in clause
(i) above, but also to reflect the relative fault of the Mortgage Loan Seller on
the one hand and the Purchaser on the other in connection with the statement or
omission that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Purchaser on the one hand and the Mortgage Loan Seller on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Certificates (before deducting expenses but net of underwriting
discounts and commissions) received by the Purchaser bear to the total net
proceeds received by the Mortgage Loan Seller with respect to the sale of the
Mortgage Loans (before deducting expenses). The relative fault 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 Mortgage Loan Seller or
the Purchaser and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Mortgage Loan Seller and the Purchaser agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were to be determined
by per capita allocation or by any other method of allocation that does not take
account of the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending against any
action or claim which is the subject of this subsection (d) subject to the
limitations therein provided under subsection (c). 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 also guilty
of such fraudulent misrepresentation.
5.3. Third Party Beneficiaries; Survival. The representations,
warranties and agreements made by the Mortgage Loan Seller in this Agreement are
made for the benefit of, and may be enforced by or on behalf of, the Trustee and
the Holders of Certificates to the same extent that the Purchaser has rights
against the Mortgage Loan Seller under this Agreement in respect of
representations, warranties and agreements made by the Mortgage Loan Seller
herein, and all such representations and warranties shall survive delivery of
the Mortgage Files to the Trustee until the termination of the Pooling and
Servicing Agreement. Section 5.2 of this Agreement shall survive delivery of the
Mortgage Files to the Trustee and remain in full force and effect after the
termination or cancellation of this Agreement.
5.4. Successors and Assigns. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder, other than as provided in Section 5.3 hereof.
5.5. Governing Law. This Agreement will be governed by and
construed in accordance with the substantive laws of the State of New York
(without regard to conflicts of laws principles), and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
5.6. Modifications. (a) Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated except by a writing
signed by the party against whom enforcement of such change, waiver, discharge
or termination is sought.
41
<PAGE>
(b) This Agreement may not be changed in any manner which
would have a material adverse effect on Holders of Certificates without the
prior written consent of the Trustee. The Trustee shall be protected in
consenting to any such change to the same extent provided in the Pooling and
Servicing Agreement.
(c) 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.
5.7. Notices. All communications hereunder shall be in writing
and effective only upon receipt and, if sent to the Purchaser, will be mailed,
delivered or transmitted by facsimile and confirmed to it at PaineWebber
Mortgage Acceptance Corporation V, 1285 Avenue of the Americas, 19th Floor, New
York, New York 10019, Attention: Steven J. Plust, telecopy number: (212)
713-8607, with a copy to O'Melveny & Myers LLP, 153 E. 53rd Street, New York,
New York 10022, Attention: Gary Barnett, Esq., telecopy number: (212) 326-2061;
or, if sent to the Mortgage Loan Seller, will be mailed, delivered or
transmitted by facsimile and confirmed to it at Merrill Lynch Mortgage Capital
Inc., 100 Church Street, 18th Floor, New York, New York 10080, Attention: Andrea
Balkan, telecopy number: (212) 652-7559, with a copy to Merrill Lynch, 100 Vesey
Street, World Financial Center, North Tower, 12th Floor, New York, New York
10281, Attention: Michael McGovern, telecopy number (212) 446-0265.
5.8. Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then, to the extent permitted by applicable law, such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement.
5.9. Confirmation of Intent. It is the express intent of the
parties hereto that the conveyance contemplated by this Agreement be, and be
treated for all purposes as, a sale by the Mortgage Loan Seller of all the
Mortgage Loan Seller's right, title and interest in and to the Mortgage Loans.
It is, further, not the intention of the parties that such conveyance be deemed
a pledge of the Mortgage Loans by the Mortgage Loan Seller to secure a debt or
other obligation of the Mortgage Loan Seller. However, in the event that,
notwithstanding the intent of the parties, the Mortgage Loans are held to
continue to be property of the Mortgage Loan Seller then (a) this Agreement
shall also be deemed to be a security agreement under applicable law; (b) the
transfer of the Mortgage Loans provided for herein shall be deemed to be a grant
by the Mortgage Loan Seller to the Purchaser of a first priority security
interest in all of the Mortgage Loan Seller's right, title and interest in and
to the Mortgage Loans and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property; (c) the possession by the Purchaser or any successor thereto of
the related 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 New York Uniform Commercial Code and the Uniform
Commercial Code of any other applicable jurisdiction; and (d) notifications to
Persons holding such property, and acknowledgments, receipts or confirmations
42
<PAGE>
from Persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Purchaser or any successor thereto for
the purpose of perfecting such security interest under applicable law. Any
assignment of the interest of the Purchaser pursuant to any provision hereof
shall also be deemed to be an assignment of any security interest created
hereby.
[Signature Pages Follow]
43
<PAGE>
IN WITNESS WHEREOF, the Purchaser and the Mortgage Loan Seller
have caused this Agreement to be duly executed by their respective officers as
of the day and year first above written.
PAINEWEBBER MORTGAGE ACCEPTANCE
CORPORATION V
as Purchaser
By: /s/ Steven J. Plust
--------------------------------------
Name: Steven J. Plust
Title: Managing Director
S-1
<PAGE>
MERRILL LYNCH MORTGAGE CAPITAL INC.
as Mortgage Loan Seller
By: /s/ Andrea Balkan
-----------------------------------
Name: Andrea Balkan
Title: Director
S-2
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
LOAN
ID PROPERTY NAME PROPERTY TYPE ORIGINATOR ADDRESS
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
ML-133 Castle Hill Health Care Center Nursing Home MLMC 615 23rd Street
ML-129 Forest Village Multifamily WMF 4400 Rena Road
ML-134 Brookville Health Care Center Nursing Home MLMC 155 40th Street
ML-100 Bay Plaza Expansion Retail MLMC 2100 Bartow Avenue
ML-144 Renaissance Office Park Office MLMC 2215-2295 & 2301-2389
Renaissance Drive
ML-146 20th & Campbell Multifamily Chase 2025 East Campbell Ave.
ML-127 Riverbend Apartments Multifamily MLMC 100 River Bend Drive
ML-148 Heathermoor Multifamily Chase 2645 Hard Road
ML-113 Windsor Station Apartments Multifamily MLMC 3501 N Buckner Blvd.
ML-147 Clinton Place Multifamily Chase 42566 Clinton Place Dr.
ML-120 Heritage Park Apartments Multifamily WMF 1800 West Badillo Street
ML-121 Delta Education Torstar CTL WMF 80 Northwest Boulevard
ML-130 Amber Crest Apartments Multifamily MLMC 25350 US Highway 19 North
ML-141 FLAG-Carriage Place Apartment Multifamily MLMC 505 Wells Fargo
ML-109 Seafield Center Health Care MLMC 7 Seafield Lane
ML-139 FLAG-Wintergreen Place Apartments Multifamily MLMC 320 E. Wintergreen Road
ML-105 Harbor Bay Club Other MLMC 200 Packet Landing Rd
ML-125 RCA - Landing @ Westchase Multifamily MLMC 9797 Meadowglen
ML-124 RCA-Eastchase Terrace Apartments Multifamily MLMC 9001 Meadowbrook
ML-102 Equinox Terrace Senior Housing-Assisted Living MLMC 324 Equinox Terrace Rd
ML-112 Summit Apartments Multifamily MLMC 444 East 4th Avenue
ML-142 FLAG-Citation North Apt Multifamily MLMC 411 Highland Cross Drive
ML-131 Mercer Mall Outparcel Retail MLMC US Route One
ML-103a GEN-Devonhouse Allentown Senior Housing-Assisted Living 1930 Bevin Drive
ML-103b GEN-Devonhouse Catasauqua Senior Housing-Assisted Living 2 Front Street
ML-103 GEN-Devonhouse Allentown & Catasauqua MLMC
ML-140 FLAG-Rock Springs Apartment Multifamily MLMC 9000 Townpark
ML-111 Sedgefield Square Apartments Multifamily MLMC 4215 Bernau Avenue
ML-110 Olympia Ramada Inn Hospitality MLMC 621 S. Capitol Way
ML-106 Holiday Inn - Waveland Hospitality MLMC 404 Highway 90
ML-143 FLAG-Greyfield Apartments Multifamily MLMC 10111 Bissonnet
ML-122 Plaza Village Multifamily WMF 498 Plaza Boulevard
ML-108a Park Ridge MHP Mobile Home Park 1751 N. Grand Ave.
ML-108b Northbrook MHP Mobile Home Park 3430 N.Peoria Rd.
ML-108 Park Ridge & Northbrook MHP - multiple
prop loan MLMC
ML-123 Daly Plaza Retail WMF 1883 Daly Street
ML-145 Fremont Park MHP Mobile Home Park MLMC 3501 Ridgely
ML-114 1383 Woodward Office Bldg Office MLMC 1383 Woodward
<PAGE>
<CAPTION>
LOAN ZIP MORTGAGE RATE NET ORIGINAL CUT-OFF DATE BALLOON/REPAYMENT
ID CITY STATE CODE RATE TYPE RATE BALANCE BALANCE BALANCE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
ML-133 Union City NJ 7087 8.375 Fixed 8.2665 17,100,000 17,100,000 12,965,703
ML-129 Suitland MD 20746 6.977 Fixed 6.8685 16,489,000 16,337,265 14,397,315
ML-134 Irvington NJ 7111 8.375 Fixed 8.2665 15,740,000 15,740,000 11,934,512
ML-100 Bronx NY 10475 7.75 Fixed 7.6415 12,830,000 12,774,267 11,004,389
ML-144 Las Vegas NV 89119 7.75 Fixed 7.6415 11,000,000 10,993,724 9,640,741
ML-146 Phoenix AZ 85016 7.47 Fixed 7.4015 10,700,000 10,700,000 9,790,462
ML-127 West Columbia SC 29169 7.025 Fixed 6.9165 9,600,000 9,960,221 8,700,203
ML-148 Columbus OH 43235 7.59 Fixed 7.5215 9,608,000 9,608,000 8,183,003
ML-113 Dallas TX 75228 7.29 Fixed 7.1815 8,600,000 9,577,018 8,422,965
ML-147 Clinton Township MI 48038 7.61 Fixed 7.5415 9,500,000 9,500,000 8,096,110
ML-120 West Covina CA 91790 7.15 Fixed 7.0415 8,600,000 8,549,334 7,544,032
ML-121 Nashua NH 3063 6.716 Fixed 6.6075 8,461,733 8,426,129 577,964
ML-130 Clearwater FL 34623 7.13 Fixed 7.0215 7,700,000 8,244,785 7,196,672
ML-141 Houston TX 77090 7.37 Fixed 7.2615 5,995,000 7,492,394 6,572,575
ML-109 Westhampton Beach NY 11978 8.5 Fixed 8.3915 7,500,000 7,438,152 5,296,379
ML-139 DeSoto TX 75134 7.22 Fixed 7.1115 5,500,000 6,460,384 5,649,823
ML-105 Alameda CA 94502 7.42 Fixed 7.3115 6,390,000 6,336,877 5,112,960
ML-125 Houston TX 77042 7.43 Fixed 7.3215 5,840,000 6,276,740 5,837,663
ML-124 Ft. Worth TX 76120 7.43 Fixed 7.3215 5,840,000 6,206,788 5,772,605
ML-102 Manchester Center VT 5255 6.75 Fixed 6.6415 6,000,000 5,962,720 5,140,133
ML-112 Escondido CA 92025 7.28 Fixed 7.1715 5,000,000 5,847,324 5,141,692
ML-142 Houston TX 77073 7.37 Fixed 7.2615 3,690,000 5,303,071 4,652,030
ML-131 Lawrence NJ 8648 8.375 Fixed 8.2665 4,900,000 4,894,164 4,348,107
ML-103a Allentown PA 18103 3,560,000 3,538,124 2,835,500
ML-103b Catasauqua PA 18032 470,000 467,112 374,350
ML-103 7.25 Fixed 7.25 4,030,000 4,005,236 3,209,850
ML-140 Houston TX 77036 7.094 Fixed 6.9855 3,200,000 3,718,448 3,243,271
ML-111 Greensboro NC 27407 7.19 Fixed 7.0815 3,200,000 3,553,408 3,119,006
ML-110 Olympia WA 98501 8.23 Fixed 8.1215 3,470,000 3,376,028 28,256
ML-106 Waveland MS 39576 7.5 Fixed 7.3915 3,000,000 2,967,020 2,054,837
ML-143 Houston TX 77036 7.37 Fixed 7.2615 1,980,000 2,684,394 2,354,837
ML-122 Morrisville PA 19067 7.5 Fixed 7.3915 2,485,000 2,476,179 2,198,425
ML-108a Springfield IL 62704 1,029,180 1,020,060 814,099
ML-108b Springfield IL 62702 510,819 506,293 404,067
ML-108 7 Fixed 6.8915 1,540,000 1,526,353 1,218,167
ML-123 Los Angeles CA 90031 7.175 Fixed 7.0665 1,238,000 1,225,052 500,517
ML-145 Springfield IL 62702 7 Fixed 6.8915 1,060,000 1,050,607 838,478
ML-114 Bloomfield Twp MI 48302 7.75 Fixed 7.6415 860,000 855,095 694,133
<PAGE>
<CAPTION>
LOAN TERM TERM MATURITY ARD TERM FIRST PAYMENT DEBT APPRAISED CURRENT UNDERWRITING
ID (MOS.) (MOS.) DATE DATE (MOS.) DATE SERVICE VALUE LTV DSCR
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
ML-133 120 120 6/1/09 264 7/1/99 143,356.04 23,500,000 72.8 1.6
ML-129 120 108 6/1/28 6/1/08 360 7/1/98 109,447.15 20,600,000 79.3 1.21
ML-134 120 120 6/1/09 264 7/1/99 131,954.62 26,400,000 59.6 1.73
ML-100 132 126 12/1/28 12/1/09 360 1/1/99 92,919.22 18,000,000 71 1.25
ML-144 120 119 5/1/09 360 6/1/99 79,686.17 16,200,000 67.9 1.25
ML-146 96 96 6/1/07 360 7/1/99 74,596.27 13,450,000 79.6 1.22
ML-127 120 105 3/1/08 360 4/1/98 67,976.03 12,600,000 79 1.31
ML-148 144 144 6/1/11 360 7/1/99 67,773.64 12,700,000 75.7 1.26
ML-113 120 103 1/1/08 360 2/1/98 67,203.06 12,150,000 78.8 1.32
ML-147 144 144 6/1/11 360 7/1/99 67,142.40 11,900,000 79.8 1.22
ML-120 120 112 10/1/08 360 11/1/98 58,084.98 11,400,000 75 1.2
ML-121 246 235 12/31/18 240 2/1/99 54,399.00 9,200,000 91.6 1
ML-130 120 108 6/1/08 360 7/1/98 56,712.70 10,400,000 79.3 1.47
ML-141 120 108 6/1/08 360 7/1/98 52,767.50 9,450,000 79.3 1.25
ML-109 120 115 1/1/09 240 2/1/99 65,667.24 10,400,000 71.5 2.27
ML-139 120 108 6/1/08 360 7/1/98 44,834.66 9,300,000 69.5 1.25
ML-105 120 113 11/1/08 300 12/1/98 47,334.33 9,600,000 66 1.57
ML-125 84 70 4/1/05 360 5/1/98 44,536.83 8,600,000 73 1.25
ML-124 84 70 4/1/05 360 5/1/98 44,040.42 8,200,000 75.7 1.25
ML-102 120 113 11/1/08 360 12/1/98 39,305.90 9,360,000 63.7 1.73
ML-112 120 103 1/1/08 360 2/1/98 40,991.44 8,330,000 70.2 1.25
ML-142 120 108 6/1/08 360 7/1/98 37,348.51 7,250,000 73.1 1.25
ML-131 120 118 4/1/09 360 5/1/99 37,673.13 7,450,000 65.7 1.4
ML-103a 25,971.82 4,450,000
ML-103b 3,428.86 1,080,000
ML-103 120 115 1/1/09 300 2/1/99 29,400.68 5,530,000 72.4 1.4
ML-140 120 108 6/1/08 360 7/1/98 25,486.72 5,200,000 71.5 1.31
ML-111 120 103 1/1/08 360 2/1/98 24,692.49 4,810,000 73.9 1.35
ML-110 264 246 12/1/19 264 1/1/98 28,448.64 6,100,000 55.3 1.68
ML-106 120 114 12/1/08 240 1/1/99 24,368.71 4,570,000 64.9 1.57
ML-143 120 108 6/1/08 360 7/1/98 18,905.68 3,360,000 79.9 1.28
ML-122 120 115 1/1/09 360 2/1/99 17,375.48 3,450,000 71.8 1.27
ML-108a 7,340.52 845,000
ML-108b 3,643.37 1,635,000
ML-108 120 113 11/1/08 300 12/1/98 10,983.90 2,480,000 61.5 1.52
ML-123 240 231 9/1/23 9/1/18 300 10/1/98 8,888.62 1,650,000 74.2 1.38
ML-145 120 113 11/1/08 300 12/1/98 7,560.35 1,375,000 76.4 1.38
ML-114 120 115 1/1/09 300 2/1/99 6,558.94 1,250,000 68.4 1.44
<PAGE>
<CAPTION>
AND / OR
LOAN SERVICING FEE EXCESS INTEREST ACCRUAL IDOT CTL LEASE ENHANCEMENT
ID RATE YIELD RATE METHOD DEFEASED LOAN LOAN POLICY
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
ML-133 0.0735 0.035 Actual/360 Yes No
ML-129 0.0735 0.035 Actual/360 Yes No
ML-134 0.0735 0.035 Actual/360 Yes No
ML-100 0.0735 0.035 Actual/360 Yes No
ML-144 0.0735 0.035 Actual/360 Yes No
ML-146 0.0685 0 Actual/360 Yes No
ML-127 0.0735 0.035 Actual/360 No No
ML-148 0.0685 0 Actual/360 Yes No
ML-113 0.0735 0.035 Actual/360 No No
ML-147 0.0685 0 Actual/360 Yes No
ML-120 0.0735 0.035 Actual/360 Yes No
ML-121 0.0735 0.035 30/360 Yes Yes No
ML-130 0.0735 0.035 Actual/360 Yes No
ML-141 0.0735 0.035 Actual/360 Yes No
ML-109 0.0735 0.035 Actual/360 Yes No
ML-139 0.0735 0.035 Actual/360 Yes No
ML-105 0.0735 0.035 Actual/360 Yes No
ML-125 0.0735 0.035 Actual/360 No No
ML-124 0.0735 0.035 Actual/360 No No
ML-102 0.0735 0.035 Actual/360 Yes No
ML-112 0.0735 0.035 Actual/360 No No
ML-142 0.0735 0.035 Actual/360 Yes No
ML-131 0.0735 0.035 Actual/360 Yes No
ML-103a 0.0735 0.035 Actual/360 Yes No
ML-103b 0.0735 0.035 Actual/360 Yes No
ML-103
ML-140 0.0735 0.035 Actual/360 No No
ML-111 0.0735 0.035 Actual/360 No No
ML-110 0.0735 0.035 30/360 Yes No
ML-106 0.0735 0.035 Actual/360 Yes No
ML-143 0.0735 0.035 Actual/360 Yes No
ML-122 0.0735 0.035 Actual/360 Yes No
ML-108a
ML-108b
ML-108 0.0735 0.035 Actual/360 Yes No
ML-123 0.0735 0.035 Actual/360 Yes No
ML-145 0.0735 0.035 Actual/360 Yes No
ML-114 0.0735 0.035 Actual/360 No No
</TABLE>
<PAGE>
EXHIBIT B
OFFICER'S CERTIFICATE OF MERRILL LYNCH MORTGAGE CAPITAL INC.
In connection with the sale, assignment and transfer of
certain mortgage loans (collectively, the "Mortgage Loans") by Merrill Lynch
Mortgage Capital Inc. (the "Mortgage Loan Seller") to PaineWebber Mortgage
Acceptance Corporation V (the "Purchaser") pursuant to the Mortgage Loan Sale
Agreement dated as of June 1, 1999 (the "Mortgage Loan Sale Agreement") between
the Mortgage Loan Seller and the Purchaser, the Mortgage Loan Seller hereby
certifies that:
(a) The representations and warranties of the Mortgage Loan Seller
contained in the Mortgage Loan Sale Agreement are true and correct in
all material respects at and as of the date hereof with the same effect
as if made on the date hereof.
(b) The Mortgage Loan Seller has complied with the terms of the
Mortgage Loan Sale Agreement and satisfied all the conditions on its
part required under the Mortgage Loan Sale Agreement to be performed or
satisfied at a prior date hereof.
In WITNESS WHEREOF, the Mortgage Loan Seller has caused this
Certificate to be duly executed and delivered as of the 7th day of June 1999.
MERRILL LYNCH MORTGAGE CAPITAL INC.
By:
--------------------------------
Name:
Title:
B-1
<PAGE>
EXHIBIT C
[Letterhead of Merrill Lynch Mortgage Capital Inc.]
June 7, 1999
Addressees Listed on Schedule A
Re: Mortgage Loan Purchase and Sale Agreement dated as of June 1, 1999 between
PaineWebber Mortgage Acceptance Corporation V and Merrill Lynch Mortgage
Capital Inc. (the "Agreement")
Ladies and Gentlemen:
I am the counsel to Merrill Lynch Mortgage Capital Inc., a
Delaware corporation (the "Company"), and, in such capacity, I am familiar with
the affairs of the Company.
I am providing this opinion in connection with the sale by the
Company to PaineWebber Mortgage Acceptance Corporation V of various commercial
and multi-family mortgage loans. This opinion is furnished to you pursuant to
Section 4.1(b)(iv) of the Mortgage Loan Purchase and Sale Agreement (the
"Agreement"). Terms used herein, but not otherwise defined herein, shall have
the meanings ascribed to them in the Agreement.
I have examined copies of the Agreement, the Certificate of
Incorporation of the Company and the By-Laws of the Company. I also have
examined such agreements, certificates of officers and representatives of the
Company and others, and other documents, papers, statutes and authorities as I
have deemed necessary to form the basis of the opinions hereinafter expressed.
In such examinations, I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals and the conformity to
original documents of copies of documents supplied to me. As to certain matters
of fact relevant to the opinions hereinafter compressed, I have relied solely
upon statements and certificates of the officers of the Company and others. I
have also assumed (other than with respect to the Company) that all documents,
agreements and instruments have been duly authorized, executed and delivered by
all parties thereto, that all such parties had the power and legal right to
execute and deliver all such documents, agreements and instruments, and that
such documents, agreements and instruments are valid, binding and enforceable
obligations of such parties.
I am admitted to the Bar of the State of , and I express
-------
no opinion as to any laws other than the laws of the United States, the State of
New York and the General Corporation Law of the State of Delaware.
Based on the foregoing, I am of the opinion that:
C-1
<PAGE>
1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
is duly qualified as a [foreign] corporation in good standing in the
State of New York, with full corporate power and authority to own its
assets and conduct its business, to execute, deliver and perform the
Agreement and all the transactions contemplated thereby, including but
not limited to, the power and authority to sell, assign and retransfer
the Mortgage Loans in accordance with the Agreement and the Company has
taken all necessary action to authorize the execution, delivery and
performance of the Agreement by it, and the Agreement has been duly
authorized, executed and delivered by it.
2. The Agreement and all of the obligations of the Company
under the Agreement are valid, legal and binding obligations of the
Company enforceable against the Company in accordance with the terms of
the Agreement, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally, 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,
statutes or court decisions to the effect that such public policy
considerations statutes or court decisions limit the enforceability of
the provisions of the Agreement relating to the rights to indemnity and
contribution.
3. The execution and delivery of the Agreement by the Company
and the performance of its obligations under the Agreement will not
conflict with any provision of any law or regulation to which the
Company is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions
of any of the Company's organizational documents or, to my knowledge,
any agreement or instrument to which the Company is a party or by which
it is bound, or any order or decree applicable to the Company, result
in the creation or imposition of any lien on any of the Company's
assets or property, in each case which would materially and adversely
affect the ability of the Company to carry out the transactions
contemplated by the Agreement.
4. To my knowledge, there is no action, suit, proceeding or
investigation pending or threatened in writing against the Company in
any court or by or before any other government agency or
instrumentality which would materially and adversely affect the
validity of the Mortgage Loans or the ability of the Company to carry
out the transactions contemplated by the Agreement.
5. To my knowledge, the Company 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 Company or its
properties or might have consequences that would materially and
adversely affect its performance under the Agreement.
C-2
<PAGE>
6. To my knowledge, no consent, approval, authorization or
order of any court or governmental agency or body is required for the
execution, delivery and performance by the Company or compliance by the
Company with the Agreement or the consummation of the transactions
contemplated by the Agreement, other than those which have been
obtained by the Company.
This opinion is furnished solely for the benefit of the
addressees hereof in connection with the transaction referred to herein. This
letter may not be relied upon, used, quoted, circulated or otherwise referred to
by any other person or for any other purpose without my prior written approval.
This opinion is being given as of the date first written above and I express no
opinion as to events or conditions subsequent to such date.
Very truly yours,
C-3
<PAGE>
SCHEDULE A
Paine Webber Real Estate Securities Inc.
1285 Avenue of the Americas
19th Floor
New York, New York 10019
Banc One Mortgage Capital Markets, LLC
1717 Main Street, 14th Floor
Dallas, Texas 75201
PaineWebber Mortgage Acceptance Corporation V
1285 Avenue of the Americas
19th Floor
New York, New York 10019
PaineWebber Incorporated
1285 Avenue of the Americas
19th Floor
New York, New York 10019
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
New York, New York 10281
Fitch IBCA, Inc.
One State Street Plaza
New York, New York 10004
Moody's Investor Services
99 Church Street, 10th Floor
New York, New York 10007
LaSalle Bank National Association
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
ABN Amro Bank N.V.
135 South LaSalle Street
Chicago, Illinois 60603
C-4
<PAGE>
EXHIBIT D
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES WITH RESPECT
TO EACH MORTGAGE LOAN
The following are exceptions to the representations and warranties made
by the Mortgage Loan Seller with respect to each Mortgage Loan as set forth in
Section 3.2(b) of this Agreement. The item number indicates the subsection
number where such representation or warranty appears in Section 3.2(b) of this
Agreement.
(x) Single-Purpose Borrower:
Mortgage Loan Nos. ML-102, ML-106, ML-121 and ML-114 have Borrowers
which are not single-purpose entities.
(xi) Borrower Is the Sole Owner of Interest in Lease Payments.
With respect to Mortgage Loan No. ML-109, the related Borrower is
permitted to sell accounts receivable, in an aggregate amount of not more than
$1,200,000 in connection with the operation of its rehabilitation center.
(xiv) Existing Indebtedness
With respect to Mortgage Loan Nos. ML-110, ML-124, ML-125 and ML-129,
the owners of the related Borrowers are permitted to pledge their limited
partnership interests or other ownership interests in the Borrower as security
for mezzanine debt that was in existence as of the date of origination of the
related Mortgage Loan.
(xv) No Additional Indebtedness.
Mortgage Loan Nos. ML-123 and ML-131 permit some additional
indebtedness within the stated parameters.
(xxiii) Assignments of Leases Create First Priority Security Interest.
With respect to Mortgage Loan No. ML-109, the related Borrower is
permitted to sell accounts receivable, in an aggregate amount of not more than
$1,200,000 in connection with the operation of its rehabilitation center.
D-1
<PAGE>
(xxiv) Mortgages Create First Lien.
Mortgage Loan No. ML-109 permits the related Borrower to sell accounts
receivable, in an aggregate amount of not more than $1,200,000 in connection
with the operation of its rehabilitation center.
(xl) No Encroachments.
With respect to Mortgage Loan No. ML-104 (GEN Devonhouse Catasauqua),
there is a garage from the adjoining property which encroaches on a strip of the
grassy area which is behind the parking lot on the Mortgaged Property. The
encroachment is less than a foot-wide and the strip is approximately 25 feet
long. There is no title insurance coverage insuring against losses arising from
such encroachments.
(xlix) Terms of Mortgage.
For the purpose of this representation, Mortgage Loan No. ML-105 (the
Harbor Bay Club) is not considered as health-related property.
(li) Credit Tenant Loans. The only Credit Tenant Lease is Mortgage
Loan No. ML- 121 (Delta).
(B) As to termination due to Casualty/Condemnation, Tenant
must substitute property or offer to purchase premises for 100% of Termination
Value plus investment if such Casualty/Condemnation would require Tenant to
close business for more than 60 days; or which entails loss of material portion
of improvements, parking lot or access or has rendered Premises uneconomic or
permanently unsuitable for restoration. Delta does not have Lease Enhancement
Policy.
(E) Delta does not have Lease Enhancement Policy.
(liii) ARD Loans.
(A) With respect to Mortgage Loan No. ML-100, the Mortgage
Rate may increase more than two percentage points from and after its Anticipated
Repayment Date.
D-2
<PAGE>
(lv) Health Care Facilities.
(C)(5) Mortgage Loan No. ML-109 (past notice of cut back,
appealed and reinstated to prior level).
D-3
<PAGE>
EXHIBIT E
LIST OF EARN-OUT LOANS
Property Name Cut-off Date Balance
ML-111 Sedgefield Square Apartments 3,553,408.15
ML-112 Summit Apartments 5,847,323.93
ML-113 Windsor Station Apartments 9,577,017.82
ML-124 RCA-Eastchase Terrace Apartments 6,206,788.45
ML-125 RCA - Landing @ Westchase 6,276,739.96
ML-127 Riverbend Apartments 9,960,221.36
ML-130 Amber Crest Apartments 8,244,785.09
ML-139 FLAG-Wintergreen Place Apartments 6,460,384.02
ML-140 FLAG-Rock Springs Apartment 3,718,448.08
ML-141 FLAG-Carriage Place Apartment 7,492,394.46
ML-142 FLAG-Citation North Apt 5,303,071.43
ML-143 FLAG-Greyfield Apartments 2,684,393.82
E-1
<PAGE>
EXHIBIT F
LIST OF CREDIT TENANT LOANS, RESIDUAL VALUE AND
LEASE ENHANCEMENT POLICES AND BONDABLE LEASES
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
LEASE TYPE
(BONDABLE,
CASUALTY/CONDEM LEASED
LESSEE/GUARANTOR NATION ONLY, CUT OFF APPRAISED
LOAN ID PROPERTY NAME/LOCATION RATINGS (S&P /MOODYS) PROPERTY TYPE NNN, NN) BALANCE VALUE
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
ML-121 Delta Education Torstar - Shadow Rated* CTL - Industrial NNN 8,426,129.20 9,200,000
Nashua, NH
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
*Shadow ratings are not necessarily by S&P or Moodys
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
F-1
<PAGE>
EXHIBIT G
LIST OF MEZZANINE DEBTS
Property Name Cut-off Date Balance
ML-110 Olympia Ramada Inn 3,376,027.87
ML-129 Forest Village 16,337,264.88
ML-124 RCA-Eastchase Terrace Apartments 6,206,788.45
ML-125 RCA - Landing @ Westchase 6,276,739.96
G-1
<PAGE>
SCHEDULE I
List of Agreements under which the Mortgage Loan Seller acquired rights
in the Mortgage Loans as provided in Section 3.7 of this Agreement
Amended and Restated Mortgage Loan Purchase Agreement by and between Merrill
Lynch Mortgage Capital Inc. and L.J. Melody & Company, as successor to CB
Commercial Mortgage Company, Inc. dated as of April 1, 1997.
Mortgage Loan Purchase Agreement by and between Merrill Lynch Mortgage Capital
Inc. and Merrill Lynch Credit Corporation dated as of April 26, 1995.
Master Mortgage Loan Purchase Agreement by and between The Chase Manhattan Bank
and Merrill Lynch Mortgage Capital Inc. dated as of May 1, 1999.
Mortgage Loan Purchase Agreement (as amended) by and between Merrill Lynch
Mortgage Capital Inc. and WMF Capital Corp dated as of August 28, 1998.
Sched-1
