EXECUTION COPY
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FIRST UNION COMMERCIAL MORTGAGE SECURITIES, INC.
Depositor
and
FIRST UNION NATIONAL BANK
Master Servicer
and
ORIX REAL ESTATE CAPITAL MARKETS, LLC
Special Servicer
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 1999
------------------------------
$885,738,326
Commercial Mortgage Pass-Through Certificates
Series 1999-C4
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TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS...................................................................... 3
SECTION 1.01. Defined Terms....................................................... 3
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES.......................................... 63
SECTION 2.01. Conveyance of Mortgage Loans....................................... 63
SECTION 2.02. Acceptance of the Trust Fund by Trustee............................ 65
SECTION 2.03. Mortgage Loan Seller's Repurchase or Substitution of Mortgage
Loans for Document Defects and Breaches of Representations
and Warranties..................................................... 66
SECTION 2.04. Representations and Warranties of Depositor........................ 69
SECTION 2.05. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests................ 70
SECTION 2.06. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee................................................ 71
SECTION 2.07. Execution, Authentication and Delivery of Class R-II
Certificates....................................................... 71
SECTION 2.08. Conveyance of REMIC II Regular Interests; Acceptance of
REMIC III by Trustee............................................... 71
SECTION 2.09. Execution, Authentication and Delivery of REMIC III
Certificates....................................................... 71
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST FUND................................ 72
SECTION 3.01. Administration of the Mortgage Loans............................... 72
SECTION 3.02. Collection of Mortgage Loan Payments............................... 73
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts......................................... 76
SECTION 3.04. Certificate Account, Interest Reserve Account and Distribution
Account............................................................ 80
SECTION 3.05. Permitted Withdrawals From the Certificate Account, Interest
Reserve Account and the Distribution Account....................... 83
SECTION 3.06. Investment of Funds in the Servicing Accounts, the Reserve
Accounts, the Certificate Account, the Distribution Account and
the REO Account.................................................... 88
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage.................................................. 90
SECTION 3.08. Enforcement of Alienation Clauses.................................. 92
.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required
Appraisals......................................................... 93
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage Files...... 97
SECTION 3.11. Servicing Compensation............................................. 98
SECTION 3.12. Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports....................................... 101
SECTION 3.13. Annual Statement as to Compliance................................. 104
SECTION 3.14. Reports by Independent Public Accountants......................... 105
SECTION 3.15. Access to Certain Information..................................... 105
SECTION 3.16. Title to REO Property; REO Account................................ 108
SECTION 3.17. Management of REO Property........................................ 110
SECTION 3.18. Sale of Mortgage Loans and REO Properties......................... 113
SECTION 3.19. Additional Obligations of Master Servicer and Special Servicer.... 116
SECTION 3.20. Modifications, Waivers, Amendments and Consents................... 117
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping.......................................... 123
SECTION 3.22. Sub-Servicing Agreements.......................................... 127
SECTION 3.23. Representations and Warranties of Master Servicer and Special
Servicer.......................................................... 129
SECTION 3.24. Sub-Servicing Agreement Representation and Warranty............... 133
SECTION 3.25. Designation of Controlling Class Representative................... 133
SECTION 3.26. Special Provisions Regarding the Servicing and Other Matters
Concerning the Split Note......................................... 135
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDER................................................. 136
SECTION 4.01. Distributions..................................................... 136
SECTION 4.02. Statements to Certificateholders; CMSA Loan File Report........... 148
SECTION 4.03. P&I Advances...................................................... 154
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund
Expenses; Allocation of Certificate Deferred Interest............. 157
SECTION 4.05. Calculations...................................................... 159
SECTION 4.06. Use of Agents..................................................... 159
ARTICLE V THE CERTIFICATES............................................................... 160
SECTION 5.01. The Certificates.................................................. 160
SECTION 5.02. Registration of Transfer and Exchange of Certificates............. 161
SECTION 5.03. Book-Entry Certificates........................................... 166
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates................. 168
SECTION 5.05. Persons Deemed Owners............................................. 168
ii
ARTICLE VI THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE CONTROLLING CLASS REPRESENTATIVE......................................... 169
SECTION 6.01. Liability of Depositor, Master Servicer and Special Servicer...... 169
SECTION 6.02. Merger, Consolidation or Conversion of Depositor or Master
Servicer or Special Servicer...................................... 169
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer and
Special Servicer.................................................. 170
SECTION 6.04. Resignation of Master Servicer and the Special Servicer........... 171
SECTION 6.05. Rights of Depositor and Trustee in Respect of Master Servicer
and the Special Servicer.......................................... 171
SECTION 6.06. Depositor, Master Servicer and Special Servicer to Cooperate
with Trustee...................................................... 172
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate with
Master Servicer................................................... 172
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with
Special Servicer.................................................. 172
SECTION 6.09. Designation of Special Servicer by the Controlling Class.......... 172
SECTION 6.10. Master Servicer or Special Servicer as Owner of a Certificate..... 174
SECTION 6.11. The Controlling Class Representative.............................. 174
ARTICLE VII DEFAULT...................................................................... 176
SECTION 7.01. Events of Default................................................. 176
SECTION 7.02. Trustee to Act; Appointment of Successor.......................... 182
SECTION 7.03. Notification to Certificateholders................................ 183
SECTION 7.04. Waiver of Events of Default....................................... 184
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.............. 184
ARTICLE VIII CONCERNING THE TRUSTEE...................................................... 185
SECTION 8.01. Duties of Trustee................................................. 185
SECTION 8.02. Certain Matters Affecting Trustee................................. 186
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of Certificates or
Mortgage Loans.................................................... 188
SECTION 8.04. Trustee May Own Certificates...................................... 188
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of Trustee.......... 188
SECTION 8.06. Eligibility Requirements for Trustee.............................. 189
SECTION 8.07. Resignation and Removal of Trustee................................ 190
SECTION 8.08. Successor Trustee................................................. 191
SECTION 8.09. Merger or Consolidation of Trustee................................ 192
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee..................... 192
SECTION 8.11. Appointment of Custodians......................................... 193
iii
SECTION 8.12. Appointment of Authenticating Agents.............................. 194
SECTION 8.13. Appointment of Paying Agent....................................... 195
SECTION 8.14. Appointment of REMIC Administrators............................... 196
SECTION 8.15. Access to Certain Information..................................... 197
SECTION 8.16. Representations, Warranties and Covenants of Trustee.............. 197
SECTION 8.17. Reports to the Securities and Exchange Commission; Available
Information....................................................... 199
SECTION 8.18. Maintenance of Mortgage File...................................... 199
ARTICLE IX TERMINATION................................................................... 200
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage
Loans............................................................. 200
SECTION 9.02. Additional Termination Requirements............................... 202
ARTICLE X ADDITIONAL TAX PROVISIONS...................................................... 203
SECTION 10.01. REMIC Administration.............................................. 203
SECTION 10.02. Grantor Trust Administration...................................... 208
ARTICLE XI MISCELLANEOUS PROVISIONS...................................................... 210
SECTION 11.01. Amendment......................................................... 210
SECTION 11.02. Recordation of Agreement; Counterparts............................ 212
SECTION 11.03. Limitation on Rights of Certificateholders........................ 212
SECTION 11.04. Governing Law..................................................... 213
SECTION 11.05. Notices........................................................... 213
SECTION 11.06. Severability of Provisions........................................ 214
SECTION 11.07. Grant of a Security Interest...................................... 214
SECTION 11.08. Xxxxxx Act........................................................ 215
SECTION 11.09. Successors and Assigns; Beneficiaries............................. 215
SECTION 11.10. Article and Section Headings...................................... 215
SECTION 11.11. Notices to Rating Agencies........................................ 215
SECTION 11.12. Complete Agreement................................................ 217
iv
EXHIBITS
Exhibit Description Exhibit No. Section Reference
------------------- ----------- -----------------
Form of Class A-1 Certificate A-1 Section 1.01 Definition of
"Class A-1 Certificate"
Form of Class A-2 Certificate A-2 Section 1.01 Definition of
"Class A-2 Certificate"
[RESERVED]
Form of Class IO Certificate A-4 Section 1.01 Definition of
"Class IO Certificate"
Form of Class B Certificate A-5 Section 1.01 Definition of
"Class B Certificate"
Form of Class C Certificate A-6 Section 1.01 Definition of
"Class C Certificate"
Form of Class D Certificate A-7 Section 1.01 Definition of
"Class D Certificate"
Form of Class E Certificate A-8 Section 1.01 Definition of
"Class E Certificate"
Form of Class F Certificate A-9 Section 1.01 Definition of
"Class F Certificate"
Form of Class G Certificate A-10 Section 1.01 Definition of
"Class G Certificate"
Form of Class H Certificate A-11 Section 1.01 Definition of
"Class H Certificate"
Form of Class J Certificate A-12 Section 1.01 Definition of
"Class J Certificate"
Form of Class K Certificate A-13 Section 1.01 Definition of
"Class K Certificate"
Form of Class L Certificate A-14 Section 1.01 Definition of
"Class L Certificate"
v
Form of Class M Certificate A-15 Section 1.01 Definition of
"Class M Certificate"
Form of Class N Certificate A-16 Section 1.01 Definition of
"Class N Certificate"
Form of Class R-I Certificate A-17 Section 1.01 Definition of
"Class R-I Certificate"
Form of Class R-II Certificate A-18 Section 1.01 Definition of
"Class R-II Certificate"
Form of Class R-III Certificate A-19 Section 1.01 Definition of
"Class R-III Certificate"
Mortgage Loan Schedule B Section 1.01 Definition of
"Mortgage Loan Schedule"
Schedule of Exceptions to C-1 Section 2.02(a)
Mortgage File Delivery
Form of Custodial Certification C-2 Section 2.02(a)
Form of Master Servicer Request D-1 Section 1.01 Definition of
for Release "Request for Release";
Section 2.03(b); Section
3.10(a); and Section 3.10(b)
Form of Special Servicer Request D-2 Section 1.01 Definition of
for Release "Request for Release"
Section 3.10(b)
Calculation of NOI/Debt Service E Section 1.01 Definition of
Coverage Ratios "Net Operating Income"
vi
[RESERVED] F
Form of Certificate from Holder G-1 Section 5.02(b)
(Transferor) of a Certificate to the
Certificate Registrar
Form of Certificate from Proposed G-2 Section 5.02(b)
Transferee of a Certificate to
Certificate Registrar
Form of Certificate from Proposed G-3 Section 5.02(b)
Transferee of a Certificate to
Certificate Registrar for non-QIBs
Form of Certificate by Prospective H Section 5.02(c)(i) and (ii)
Transferee
Form of Transfer Affidavit and I-1 Section 5.02(d)(i)(B)
Agreement regarding Class R-I
Certificates
Form of Transferor Certificate I-2 Section 5.02(d)(i)(D)
regarding Class R-I, R-II and R-
III Certificates
Form of Notice and J-1 Section 6.09
Acknowledgment
Form of Acknowledgment of J-2 Section 6.09
Proposed Special Servicer
[RESERVED] K
[RESERVED] L
Form of CMSA Property File M Section 3.12(c)
Report
Form of Comparative Financial N Section 3.12(b) and 3.12(c)
Status Report
Form of REO Status Report O Section 3.12(b) and 3.12(c)
vii
Form of Watch List P Section 3.12(b) and 3.12(c)
Form of Delinquent Loan Status Q Section 3.12(b) and 3.12(c)
Report
Form of Historical Loan R Section 3.12(b) and 3.12(c)
Modification Report
Form of Historical Liquidation S Section 3.12(b) and 3.12(c)
Report
Form of NOI Adjustment T Section 3.12(b) and 3.12(c)
Worksheet
Form of Operating Statement U Section 3.12(b) and 3.12(c)
Analysis
[RESERVED] V
Form of CMSA Loan File Report W Section 4.02(b)
Form of Certificateholder X-1 Section 3.15
Confirmation Certificate
Form of Prospective Purchaser X-2 Section 3.15
Certificate
Form of CMSA Bond File Report Y Section 3.15
Form of CMSA Collateral File Z Section 3.15
Report
viii
This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of December 1, 1999, among FIRST UNION COMMERCIAL MORTGAGE
SECURITIES, INC., as Depositor, FIRST UNION NATIONAL BANK, as Master Servicer,
ORIX REAL ESTATE CAPITAL MARKETS, LLC, as Special Servicer, and NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates
(collectively, the "Certificates"), to be issued hereunder in multiple classes
(each, a "Class"), which in the aggregate will evidence the entire beneficial
ownership interest in a trust fund (the "Trust Fund") to be created hereunder,
the primary assets of which will be the Mortgage Loans.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Mortgage Loans (exclusive of that portion of
the interest payments thereon that constitute Additional Interest) and certain
other related assets subject to this Agreement as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as "REMIC I."
The Class R-I Certificates will represent the sole class of "residual interests"
in REMIC I for purposes of the REMIC Provisions under federal income tax law.
Except as provided below, each REMIC I Regular Interest will relate to a
specific Mortgage Loan. Each such REMIC I Regular Interest will have: (i)
subject to adjustment as provided herein, a REMIC I Remittance Rate as described
in the definition thereof; and (ii) an initial Uncertificated Principal Balance
equal to the Cut-off Date Balance of the Mortgage Loan to which such REMIC I
Regular Interest relates. None of the REMIC I Regular Interests will be
certificated.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC II." The Class R-II Certificates will represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. Each of the fourteen REMIC II Regular Interests
will be designated as a separate "regular interest" in REMIC II for purposes of
the REMIC Provisions under federal income tax law and will have a REMIC II
Remittance Rate equal to the Weighted Average REMIC I Remittance Rate. The
initial REMIC Principal Balance of each such REMIC II Regular Interest is set
forth in the Table below. None of the REMIC II Regular Interests will be
certificated.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC II Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as "REMIC III". The Class R-III Certificates will evidence the sole
class of "residual interests" in REMIC III for purposes of the REMIC Provisions
under federal income tax law. For federal income tax purposes, each Class of the
Regular Certificates (other than the Class IO Certificates) and each of the
Components of the Class
1
IO Certificates will be designated as a separate "regular interest" in REMIC III
for purposes of the REMIC Provisions under federal income tax law.
The following table sets forth the Class designation, the
corresponding REMIC II Regular Interest (the "Corresponding REMIC II Regular
Interest"), the corresponding Component of the Class IO Certificates (the
"Corresponding Component") and the Original Class Principal Balance for each
Class of the Regular Certificates (other than the Class IO Certificates).
Corresponding
Corresponding Component of
Class REMIC II Class IO Original Class
Designation Regular Interest (1) Certificates (1) Principal Balance
Class A-1 M IO-A-1 $ 206,000,000
Class A-2 N IO-A-2 $ 447,232,000
Class B O IO-B $ 46,501,000
Class C P IO-C $ 42,072,000
Class D Q IO-D $ 13,286,000
Class E R IO-E $ 28,787,000
Class F S IO-F $ 13,286,000
Class G T IO-G $ 33,215,000
Class H U IO-H $ 11,072,000
Class J V IO-J $ 2,214,000
Class K W IO-K $ 6,643,000
Class L X IO-L $ 8,858,000
Class M Y IO-M $ 8,857,000
Class N Z IO-N $ 17,715,326
(1) The REMIC II Regular Interest and the Component of the Class IO Certificates
that correspond to any particular Class of Sequential Pay Certificates also
correspond to each other and, accordingly, constitute the "Corresponding REMIC
II Regular Interest" and the "Corresponding Component", respectively, with
respect to each other.
As provided herein, the Trustee shall take all actions necessary to
ensure that the portion of the Trust Fund consisting of the Grantor Trust Assets
maintains its status as a "grantor trust" under federal income tax law and not
be treated as part of REMIC I, REMIC II or REMIC III.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the Trustee agree as
follows:
2
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article.
"30/360 Basis": The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
"Accrued Certificate Interest": With respect to any Class of Regular
Certificates (other than the Class IO Certificates) for any Distribution Date,
one month's interest at the Pass-Through Rate applicable to such Class of
Certificates for such Distribution Date, accrued for the related Interest
Accrual Period on the related Class Principal Balance outstanding immediately
prior to such Distribution Date; and, with respect to the Class IO Certificates
for any Distribution Date, the sum of the Accrued Component Interest for the
related Interest Accrual Period for all of its Components for such Distribution
Date. Accrued Certificate Interest shall be calculated on a 30/360 Basis and,
with respect to any Class of Regular Certificates for any Distribution Date,
shall be deemed to accrue during the calendar month preceding the month in which
such Distribution Date occurs.
"Accrued Component Interest": With respect to each Component of the
Class IO Certificates for any Distribution Date, one month's interest at the
Pass-Through Rate applicable to such Component for such Distribution Date,
accrued on the Component Notional Amount of such Component outstanding
immediately prior to such Distribution Date. Accrued Component Interest shall be
calculated on a 30/360 Basis and, with respect to any Component of the Class IO
Certificates for any Distribution Date, shall be deemed to accrue during the
calendar month preceding the month in which such Distribution Date occurs.
"Acquisition Date": With respect to any REO Property, the first day
on which such REO Property is considered to be acquired by the Trust Fund within
the meaning of Treasury Regulations Section 1.856-6(b)(1), which is the first
day on which the Trust Fund is treated as the owner of such REO Property for
federal income tax purposes.
"Actual/360 Basis": The accrual of interest calculated on the basis
of the actual number of days elapsed during any calendar month in a year assumed
to consist of 360 days.
3
"Actual/360 Mortgage Loan": Each Mortgage Loan that accrues interest
on an Actual/360 Basis and that is identified as an Actual/360 Mortgage Loan on
the Mortgage Loan Schedule.
"Additional Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal balance of
such ARD Loan at the Additional Interest Rate (the payment of which interest
shall, under the terms of such Mortgage Loan, be deferred until the entire
outstanding principal balance of such ARD Loan has been paid), together with all
interest, if any, accrued at the related Mortgage Rate on such deferred
interest. For purposes of this Agreement, Additional Interest on an ARD Loan or
any successor REO Loan shall be deemed not to constitute principal or any
portion thereof and shall not be added to the unpaid principal balance or Stated
Principal Balance of such ARD Loan or successor REO Loan, notwithstanding that
the terms of the related Mortgage Loan documents so permit. To the extent that
any Additional Interest is not paid on a current basis, it shall be deemed to be
deferred interest.
"Additional Interest Rate": With respect to any ARD Loan after its
Anticipated Repayment Date, the incremental increase in the per annum rate at
which such Mortgage Loan accrues interest after the Anticipated Repayment Date
(in the absence of defaults) as calculated and as set forth in the related
Mortgage Loan documents.
"Additional Right": With respect to any Credit Lease, any
termination or abatement rights of the related Tenant arising from a Mortgagor's
default under such Credit Lease in performing certain obligations, including
environmental remediation not caused by the Tenant, enforcement of restrictive
covenants affecting other property owned by the Mortgagor and compliance with
laws affecting the related Mortgaged Property or common areas relating to such
Mortgaged Property.
"Additional Trust Fund Expense": Any Special Servicing Fees, Workout
Fees, Principal Recovery Fees and, in accordance with Sections 3.03(d) and
4.03(d), interest payable to the Master Servicer and the Trustee on Advances (to
the extent not offset by Penalty Interest and late payment charges) and amounts
payable to the Special Servicer in connection with inspections of Mortgaged
Properties required pursuant to the second sentence of Section 3.12(a), as well
as (without duplication) any of the expenses of the Trust Fund that may be
withdrawn (x) pursuant to any of clauses (viii), (ix), (xi), (xii) and (xiii) of
Section 3.05(a) out of general collections on the Mortgage Loans and any REO
Properties on deposit in the Certificate Account or (y) pursuant to clause (ii)
or any of clauses (iv) through (vi) of Section 3.05(b) out of general
collections on the Mortgage Loans and any REO Properties on deposit in the
Distribution Account; provided that for purposes of the allocations contemplated
by Section 4.04 no such expense shall be deemed to have been incurred by the
Trust Fund until such time as the payment thereof is actually made from the
Certificate Account or the Distribution Account, as the case may be.
4
"Additional Yield Amount": With respect to any Distribution Date and
each Class of Sequential Pay Certificates (other than any Excluded Class
thereof) entitled to distributions of principal pursuant to Section 4.01(a) on
such Distribution Date, provided that a Yield Maintenance Charge was actually
collected on a Mortgage Loan or an REO Loan during the related Collection
Period, the product of (a) such Yield Maintenance Charge, as the case may be,
multiplied by (b) a fraction, which in no event will be greater than one, the
numerator of which is equal to the positive excess, if any, of (i) the
Pass-Through Rate for such Class of Sequential Pay Certificates over (ii) the
related Discount Rate, and the denominator of which is equal to the positive
excess, if any, of (i) the Mortgage Rate for such Mortgage Loan or REO Loan, as
the case may be, over (ii) the related Discount Rate, multiplied by (c) a
fraction, the numerator of which is equal to the amount of principal
distributable on such Class of Sequential Pay Certificates on such Distribution
Date pursuant to Section 4.01(a), and the denominator of which is equal to the
Principal Distribution Amount for such Distribution Date.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(i).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Anticipated Repayment Date": For each ARD Loan, the date specified
in the related Mortgage Note after which the Mortgage Rate for such ARD Loan
will increase as specified in the related Mortgage Note.
"Appraisal": With respect to any Mortgage Loan, an appraisal of the
related Mortgaged Property from an Independent Appraiser selected by the Special
Servicer or the Master Servicer, prepared in accordance with 12 CFR ss.225.62
and conducted in accordance with the standards of the American Appraisal
Institute by an Independent Appraiser, which Independent Appraiser shall be
advised to take into account the factors specified in Section 3.18(e), any
available environmental, engineering or other third-party reports, and other
factors that a prudent real estate appraiser would consider.
5
"Appraisal Reduction Amount": The excess, if any, of (a) the sum of,
as calculated by the Master Servicer as of the later of (30) days after the
Determination Date immediately succeeding, the date on which a Required apraisal
(or internal valuation, if applicable) is obtained and each Determination Date
thereafter so long as the related Mortgage Loan remains a Required Appraisal
Mortgage Loan (without duplication), (i) the Stated Principal Balance of the
subject Required Appraisal Mortgage Loan, (ii) to the extent not previously
advanced by or on behalf of the Master Servicer or the Trustee, all unpaid
interest on the Required Appraisal Mortgage Loan through the most recent Due
Date prior to such Determination Date at a per annum rate equal to the related
Net Mortgage Rate (exclusive of any portion thereof that constitutes Additional
Interest), (iii) all accrued but unpaid Servicing Fees and Additional Trust Fund
Expenses in respect of such Required Appraisal Mortgage Loan, (iv) all related
unreimbursed Advances (plus accrued interest thereon) made by or on behalf of
the Master Servicer or the Trustee with respect to such Required Appraisal
Mortgage Loan and (v) all currently due and unpaid real estate taxes and
unfunded improvement reserves and assessments, insurance premiums, and, if
applicable, ground rents in respect of the related Mortgaged Property over (b)
an amount equal to the sum of (i) the Required Appraisal Value and (ii) all
escrows and reserves held with respect to such Required Appraisal Mortgage Loan.
If the Special Servicer fails to obtain a Required Appraisal within the time
limit described in Section 3.09(a), the Appraisal Reduction Amount for the
related Required Appraisal Mortgage Loan will equal 25% of the outstanding
principal balance of such Required Appraisal Mortgage Loan, to be adjusted upon
receipt of a Required Appraisal (or internal valuation, if applicable).
"Appraised Value": With respect to each Mortgaged Property, the
appraised value thereof based upon the most recent Appraisal or update thereof
that is contained in the related Servicing File.
"ARD Loan": Any Mortgage Loan that provides that if the unamortized
principal balance thereof is not repaid on its Anticipated Repayment Date, such
Mortgage Loan will accrue Additional Interest at the rate specified in the
related Mortgage Note and the Mortgagor is required to apply excess monthly cash
flow generated by the related Mortgaged Property to the repayment of the
outstanding principal balance on such Mortgage Loan.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor in connection with the origination of the related
Mortgage Loan.
"Assumed Scheduled Payment": With respect to any Balloon Mortgage
Loan for its Stated Maturity Date (provided that such Mortgage Loan has not been
paid in full and no other Liquidation Event has occurred in respect thereof on
or before such Stated Maturity Date) and for any subsequent Due Date therefor as
of which such Mortgage Loan remains outstanding and part
6
of the Trust Fund, the Periodic Payment of principal and/or interest deemed to
be due in respect thereof on such Due Date that would have been due in respect
of such Mortgage Loan on such Due Date if the related Mortgagor had been
required to continue to pay principal in accordance with the amortization
schedule, if any, and to accrue interest at the Mortgage Rate, in effect on the
Closing Date and without regard to the occurrence of its Stated Maturity Date.
With respect to any REO Loan, for any Due Date therefor as of which the related
REO Property remains part of the Trust Fund, the Periodic Payment of principal
and/or interest deemed to be due in respect thereof on such Due Date that would
have been due in respect of the predecessor Mortgage Loan on such Due Date had
it remained outstanding (or, if the predecessor Mortgage Loan was a Balloon
Mortgage Loan and such Due Date coincides with or follows what had been its
Stated Maturity Date, the Assumed Scheduled Payment that would have been deemed
due in respect of the predecessor Mortgage Loan on such Due Date had it remained
outstanding).
"Authenticating Agent": Any authenticating agent appointed pursuant
to Section 8.12 (or, in the absence of any such appointment, the Trustee).
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the sum of, without duplication, (i) the aggregate
of the amounts on deposit in the Certificate Account and the Distribution
Account as of the close of business on the related Determination Date and the
amounts collected by or on behalf of the Master Servicer as of the close of
business on such Determination Date and required to be deposited in the
Certificate Account, (ii) the aggregate amount of any P&I Advances made by the
Master Servicer or the Trustee for distribution on the Certificates on such
Distribution Date pursuant to Section 4.03, (iii) the aggregate amount
transferred from the REO Account (if established) to the Certificate Account
during the month of such Distribution Date, on or prior to the P&I Advance Date
in such month, pursuant to Section 3.16(c), (iv) the aggregate amount deposited
by the Master Servicer in the Distribution Account for such Distribution Date
pursuant to Section 3.19 in connection with Prepayment Interest Shortfalls, and
(v) for each Distribution Date occurring in March, the aggregate of the Interest
Reserve Amounts in respect of each Interest Reserve Loan deposited into the
Distribution Account pursuant to Section 3.05(c), net of (b) the portion of the
amount described in subclauses (a)(i) and (a)(iii) of this definition that
represents one or more of the following: (i) collected Periodic Payments that
are due on a Due Date following the end of the related Collection Period, (ii)
any amounts payable or reimbursable to any Person from the (A) Certificate
Account pursuant to clauses (ii)-(xiv) and (xvii) of Section 3.05(a) or (B) the
Distribution Account pursuant to clauses (ii) - (vi) of Section 3.05(b), (iii)
Prepayment Premiums and Yield Maintenance Charges, (iv) Additional Interest, (v)
with respect to the Distribution Date occurring during February of each year and
during January of each year that is not a leap year, the Interest Reserve
Amounts with respect to the Interest Reserve Loans to be withdrawn from the
Certificate Account and deposited in the Interest Reserve Account in respect of
such Distribution Date and held for future distribution pursuant to Section
3.04(c) and (vi) any amounts deposited in the Certificate Account or the
Distribution Account in error.
7
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date
provides for an amortization schedule extending beyond its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Scheduled Payment payable on the Stated Maturity
Date of such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Bid Allocation": With respect to the Master Servicer and each
Sub-Servicer and the proceeds of any bid pursuant to Section 7.01(c), the amount
of such proceeds (net of any expenses incurred in connection with such bid and
the transfer of servicing), multiplied by a fraction equal to (a) the Servicer
Fee Amount for the Master Servicer or such Sub-Servicer, as the case may be, as
of such date of determination, over (b) the aggregate of the Servicer Fee
Amounts for the Master Servicer and all of the Sub-Servicers as of such date of
determination.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Minneapolis, Minnesota, or the
cities in which the Corporate Trust Office of the Trustee (which as of the
Closing Date is Columbia, Maryland) or the offices of the Master Servicer (which
as of the Closing Date is Charlotte, North Carolina) are located, are authorized
or obligated by law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the First Union National Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 1999-C4,
as executed by the Certificate Registrar and authenticated and delivered
hereunder by the Authenticating Agent.
"Certificate Account": The segregated account or accounts created
and maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of
the Trustee in trust for Certificateholders, which shall be entitled "First
Union National Bank, as Master Servicer for Norwest Bank Minnesota, National
Association, as Trustee, on behalf of and in trust for the
8
registered holders of First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 1999-C4".
"Certificate Deferred Interest": The amount by which interest
distributable to any Class of Sequential Pay Certificates is reduced by the
amount of Mortgage Deferred Interest allocable to such Class on any Distribution
Date.
"Certificate Factor": With respect to any Class of Sequential Pay
Certificates as of any date of determination, a fraction, expressed as a decimal
carried to eight places, the numerator of which is the then current Class
Principal Balance of such Class of Sequential Pay Certificates, and the
denominator of which is the Original Class Principal Balance of such Class of
Sequential Pay Certificates.
"Certificate Notional Amount": With respect to any Class IO
Certificate, as of any date of determination, the then notional amount of such
Certificate equal to the product of (a) the Percentage Interest evidenced by
such Certificate, multiplied by (b) the then Class Notional Amount of the Class
IO Certificates.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Principal Balance": With respect to any Sequential Pay
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class Principal
Balance of the Class of Certificates to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person in whose name a Certificate is
registered in the Certificate Register, except that (i) neither a Disqualified
Organization nor a Non-United States Person shall be Holder of a Residual
Certificate for any purpose hereof and, (ii) solely for the purposes of giving
any consent, approval or waiver pursuant to this Agreement that relates to any
of the Depositor, any Mortgage Loan Seller, the Master Servicer, the Special
Servicer, or the Trustee in its respective capacity as such (except with respect
to amendments or waivers referred to in Sections 7.04 and 11.01 hereof and any
consent, approval or waiver required or permitted to be made by the Majority
Subordinate Certificateholder or the Controlling Class Representative and any
election, removal or replacement of the Special Servicer or the Controlling
Class Representative pursuant to Section 6.09), any Certificate registered in
the name of the Depositor,
9
any Mortgage Loan Seller, the Master Servicer, the Special Servicer, or the
Trustee, as the case may be, or any Certificate registered in the name of any of
their respective Affiliates, shall be deemed not to be outstanding, and the
Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent, approval or waiver that relates to it has been
obtained. The Certificate Registrar shall be entitled to request and rely upon a
certificate of the Depositor, the Master Servicer or the Special Servicer in
determining whether a Certificate is registered in the name of an Affiliate of
such Person. All references herein to "Holders" or "Certificateholders" shall
reflect the rights of Certificate Owners as they may indirectly exercise
such rights through the Depository and the Depository Participants, except as
otherwise specified herein; provided, however, that the parties hereto shall be
required to recognize as a "Holder" or "Certificateholder" only the Person in
whose name a Certificate is registered in the Certificate Register.
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Certificates": The Class A-1 and Class A-2 Certificates.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing (i) a portion of a "regular interest" in REMIC
III for purposes of the REMIC Provisions and (ii) the proportionate interest in
the Additional Interest that is described in Section 4.01(b).
"Class A-2 Certificate": Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing (i) a portion of a "regular interest" in REMIC
III for purposes of the REMIC Provisions and (ii) the proportionate interest in
the Additional Interest that is described in Section 4.01(b).
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing (i) a portion of a "regular interest" in REMIC
III for purposes of the REMIC Provisions and (ii) the proportionate interest in
the Additional Interest that is described in Section 4.01(b).
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing (i) a portion of a "regular interest" in REMIC
III for purposes of the REMIC Provisions and (ii) the proportionate interest in
the Additional Interest that is described in Section 4.01(b).
10
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing (i) a portion of a "regular interest" in REMIC
III for purposes of the REMIC Provisions and (ii) the proportionate interest in
the Additional Interest that is described in Section 4.01(b).
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing (i) a portion of a "regular interest" in REMIC
III for purposes of the REMIC Provisions and (ii) the proportionate interest in
the Additional Interest that is described in Section 4.01(b).
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing (i) a portion of a "regular interest" in REMIC
III for purposes of the REMIC Provisions and (ii) the proportionate interest in
the Additional Interest that is described in Section 4.01(b).
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class H Certificate": Any of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class IO Certificate": Any one of the Certificates with a "Class
IO" designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing (i) a portion of each of the Components, each of
which Components shall constitute a separate "regular interest" in REMIC III for
purposes of the REMIC Provisions and (ii) the proportionate interest in the
Additional Interest that is described in Section 4.01(b).
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class K Certificate": Any of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of Exhibit A-13
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class L Certificate": Any of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of Exhibit A-14
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
11
"Class M Certificate": Any of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of Exhibit A-15
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class N Certificate": Any of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of Exhibit A-16
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class Notional Amount": As of any date of determination, the sum of
the then Component Notional Amounts of all of the Components.
"Class Principal Balance": The aggregate principal balance of any
Class of Sequential Pay Certificates outstanding from time to time. As of the
Closing Date, the Class Principal Balance of each Class of Sequential Pay
Certificates shall equal the Original Class Principal Balance thereof. On each
Distribution Date, the Class Principal Balance of each such Class of
Certificates shall be reduced by the amount of any distributions of principal
made thereon on such Distribution Date pursuant to Section 4.01 or 9.01, as
applicable, and shall be further reduced by the amount of any Realized Losses
and Additional Trust Fund Expenses allocated thereto on such Distribution Date
pursuant to Section 4.04(a). The Class Principal Balance of any Class of
Sequential Pay Certificates will be increased on any Distribution Date by the
amount of any Certificate Deferred Interest allocated to such Class on such
Distribution Date. Distributions in respect of a reimbursement of Realized
Losses and Additional Trust Fund Expenses previously allocated to a Class of
Sequential Pay Certificates shall not constitute distributions of principal and
shall not result in reduction of the related Class Principal Balance.
"Class R-I Certificate": Any one of the Certificates with a "Class
R-I" designation on the face thereof, substantially in the form of Exhibit A-17
attached hereto, and evidencing a portion of the sole class of "residual
interests" in REMIC I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class
R-II" designation on the face thereof, substantially in the form of Exhibit A-18
attached hereto, and evidencing a portion of the sole class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
"Class R-III Certificate": Any one of the Certificates with a "Class
R-III" designation on the face thereof, substantially in the form of Exhibit
A-19 attached hereto, and evidencing a portion of the sole class of "residual
interests" in REMIC III for purposes of the REMIC Provisions.
"Closing Date": December 17, 1999.
12
"CMSA Bond File Report": The monthly report in the "CMSA Bond File
Report" format substantially containing the information called for therein, a
form of which is attached hereto as Exhibit Y.
"CMSA Collateral File Report": The monthly report in the "CMSA
Collateral File" format substantially containing the information called for
therein, a form of which is attached hereto as Exhibit Z.
"CMSA Loan File Report": The monthly report in the "CMSA Loan File
Report" format substantially containing the information called for therein for
the Mortgage Loans, a form of which is attached hereto as Exhibit W.
"CMSA Property File Report": The monthly report in the "CMSA
property file" format substantially containing the information called for
therein for each Mortgaged Property, a form of which is attached hereto as
Exhibit M.
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date, the
period commencing on the day immediately following the Determination Date for
the preceding Distribution Date (or, in the case of the initial Distribution
Date, commencing immediately following the Cut-off Date) and ending on and
including the related Determination Date.
"Comparative Financial Status Report": A report substantially
containing the content described in Exhibit N attached hereto, setting forth,
among other things, the occupancy, revenue, net operating income and Debt
Service Coverage Ratio for each Mortgage Loan or the related Mortgaged Property,
calculated as of the last day of the calendar month immediately preceding the
preparation of such report, for (i) each of the three immediately preceding
monthly periods (to the extent such information is available), (ii) the most
current available year-to-date, (iii) the previous two full fiscal years stated
separately, and (iv) the "base year" (representing the original analysis of
information used as of the Cut-off Date). For the purposes of the Master
Servicer's production of any such report that is required to state information
for any period prior to the Cut-off Date, the Master Servicer may conclusively
rely (without independent verification), absent manifest error, on information
provided to it by the related Mortgage Loan Seller.
"Component": Each of Component IO-A-1, Component IO-A-2, Component
IO- B, Component IO-C, Component IO-D, Component IO-E, Component IO-F, Component
IO-G, Component IO-H, Component IO-J, Component IO-K, Component IO-L, Component
IO-M and Component IO-N, each evidencing a separate "regular interest" in REMIC
III for purposes of the REMIC Provisions. Such Components are collectively
evidenced by the Class IO Certificates.
13
"Component IO-A-1": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current
Uncertificated Principal Balance of REMIC II Regular Interest M as of any date
of determination.
"Component IO-A-2": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current
Uncertificated Principal Balance of REMIC II Regular Interest N as of any date
of determination.
"Component IO-B": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current
Uncertificated Principal Balance of REMIC II Regular Interest O as of any date
of determination.
"Component IO-C": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current
Uncertificated Principal Balance of REMIC II Regular Interest P as of any date
of determination.
"Component IO-D": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current
Uncertificated Principal Balance of REMIC II Regular Interest Q as of any date
of determination.
"Component IO-E": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current
Uncertificated Principal Balance of REMIC II Regular Interest R as of any date
of determination.
"Component IO-F": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current
Uncertificated Principal Balance of REMIC II Regular Interest S as of any date
of determination.
"Component IO-G": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current
Uncertificated Principal Balance of REMIC II Regular Interest T as of any date
of determination.
"Component IO-H": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current
Uncertificated Principal Balance of REMIC II Regular Interest U as of any date
of determination.
"Component IO-J": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current
Uncertificated Principal Balance of REMIC II Regular Interest V as of any date
of determination.
14
"Component IO-K": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current
Uncertificated Principal Balance of REMIC II Regular Interest W as of any date
of determination.
"Component IO-L": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current
Uncertificated Principal Balance of REMIC II Regular Interest X as of any date
of determination.
"Component IO-M": One of fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current
Uncertificated Principal Balance of REMIC II Regular Interest Y as of any date
of determination.
"Component IO-N": One of the fourteen components of the Class IO
Certificates having a Component Notional Amount equal to the then current
Uncertificated Principal Balance of REMIC II Regular Interest Z as of any date
of determination.
"Component Notional Amount": With respect to each Component, as of
any date of determination, an amount equal to the then Uncertificated Principal
Balance of its Corresponding REMIC II Regular Interest.
"Controlling Class": As of any date of determination, the Class of
Sequential Pay Certificates, (a) which bears the latest alphabetical Class
designation and (b) the Class Principal Balance of which is greater than 25% of
the Original Class Principal Balance thereof; provided, however, that if no
Class of Sequential Pay Certificates satisfies clause (b) above, the Controlling
Class shall be the outstanding Class of Certificates (other than the Residual
Certificates or the Class IO Certificates) bearing the latest alphabetical Class
designation. With respect to determining the Controlling Class, the Class A-1
and Class A-2 Certificates shall be deemed a single Class of Certificates.
"Controlling Class Representative": As defined in Section 3.25.
"Corporate Trust Office": The principal corporate trust office of
the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at (i) with respect to maintenance of the
Certificate Register and the transfer and exchange of Certificates, the office
of the Trustee located at Norwest Center, Sixth and Marquette, Minneapolis,
Minnesota, 55479-0113, Attention: Corporate Trust Services (CMBS) - First Union
National Bank Commercial Mortgage Trust, Series 1999-C4, and (ii) for all other
purposes, 00000 Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Services (CMBS) -- First Union National Bank Commercial Mortgage
Trust, Series 1999-C4.
15
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be such in accordance with
the definition of "Specially Serviced Mortgage Loan".
"Corresponding Component": As defined in the Preliminary Statement
with respect to any Class of Sequential Pay Certificates or any REMIC II Regular
Interest.
"Corresponding REMIC II Regular Interest": As defined in the
Preliminary Statement with respect to any Class of Sequential Pay Certificates
or any Component of the Class IO Certificates.
"Credit Lease": With respect to each Credit Lease Loan, the lease
agreement between the Mortgagor as lessor and the Tenant as lessee of the
related Mortgaged Property.
"Credit Lease Loan": Each Mortgage Loan that is identified as a
"Credit Lease Loan" on the Mortgage Loan Schedule.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an Affiliate of the
Depositor or any Mortgage Loan Seller. If no such custodian has been appointed
or if such custodian has been so appointed, but the Trustee shall have
terminated such appointment, then the Trustee shall be the Custodian.
"Cut-off Date": With respect to any Mortgage Loan, the Due Date for
such Mortgage Loan in December 1999.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the Cut-off Date,
after application of all unscheduled payments of principal received on or before
such date and the principal component of all Periodic Payments due on or before
such date, whether or not received.
"DCR": Duff & Xxxxxx Credit Rating Company, or its successor in
interest. If neither such rating agency nor any successor remains in existence,
"DCR" shall be deemed to refer to such other nationally recognized statistical
rating agency or other comparable Person designated by the Depositor, notice of
which designation shall be given to the Trustee, the Master Servicer and the
Special Servicer, and specific ratings of DCR herein referenced shall be deemed
to refer to the equivalent ratings of the party so designated.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan, as
of any date of determination, the ratio of (x) the annualized Net Operating
Income (before payment of any debt service on such Mortgage Loan) generated by
the related Mortgaged Property during the
16
most recently ended period of not less than six months and not more than twelve
months for which financial statements, if available (whether or not audited)
have been received by or on behalf of the related Mortgage Loan Seller (prior to
the Closing Date) or the Master Servicer or the Special Servicer (following the
Closing Date), to (y) twelve times the amount of the Periodic Payment in effect
for such Mortgage Loan as of such date of determination.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is delinquent
sixty days or more in respect to a Periodic Payment (not including the Balloon
Payment) or is delinquent thirty days or more in respect of its Balloon Payment,
in either case such delinquency to be determined without giving effect to any
grace period permitted by the related Mortgage or Mortgage Note and without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note, or (ii) as to which the Master Servicer or the Special Servicer has, by
written notice to the related Mortgagor, accelerated the maturity of the
indebtedness evidenced by the related Mortgage Note.
"Defeasance Collateral": With respect to any Defeasance Loan, the
United States Treasury obligations required or permitted to be pledged in lieu
of prepayment pursuant to the terms thereof.
"Defeasance Loan": Any Mortgage Loan identified as a Defeasance Loan
on the Mortgage Loan Schedule which permits or requires the related Mortgagor
(or permits the holder of such Mortgage Loan to require the related Mortgagor)
to pledge Defeasance Collateral to such holder in lieu of prepayment.
"Definitive Certificate": As defined in Section 5.03(a).
"Delinquent Loan Status Report": A report substantially containing
the content described in Exhibit Q attached hereto, setting forth, among other
things, those Mortgage Loans which, as of the close of business on the
Determination Date immediately preceding the preparation of such report, were
delinquent 30-59 days, delinquent 60-89 days, delinquent 90 days or more,
current but constituted Specially Serviced Mortgage Loans, or were in
foreclosure but were not REO Property and status of resolution.
"Depositor": First Union Commercial Mortgage Securities, Inc. or its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depository for purposes of registering those Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Securities Exchange Act of
1934, as amended.
17
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to any Distribution Date, the
11th day of the month in which such Distribution Date occurs, or if such 11th
day is not a Business Day, the Business Day immediately succeeding.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale or lease,
the performance of any construction work thereon or any use of such REO Property
in a trade or business conducted by REMIC I other than through an Independent
Contractor; provided, however, that the Trustee (or the Special Servicer or any
Sub-Servicer on behalf of the Trustee) shall not be considered to Directly
Operate an REO Property solely because the Trustee (or the Special Servicer or
any Sub-Servicer on behalf of the Trustee) establishes rental terms, chooses
tenants, enters into or renews leases, deals with taxes and insurance, or makes
decisions as to repairs or capital expenditures with respect to such REO
Property.
"Discount Rate": With respect to any prepaid Mortgage Loan or REO
Loan for purposes of allocating any Yield Maintenance Charge received thereon or
with respect thereto among the respective Classes of the Sequential Pay
Certificates (other than any Excluded Class thereof), an amount equal to the
discount rate stated in the Mortgage Loan documents related to such Mortgage
Loan or REO Loan used in calculating the related Prepayment Premium or Yield
Maintenance Charge; provided, that if a discount rate is not stated thereon, the
"Discount Rate" will be an amount equal to the yield (when compounded monthly)
on the U.S. Treasury issue with a maturity date closest to the maturity date for
such prepaid Mortgage Loan or REO Loan. In the event there are two or more such
U.S. Treasury issues (a) with the same coupon, the issue with the lowest yield
shall apply, and (b) with maturity dates equally close to the maturity date for
the prepaid Mortgage Loan or REO Loan, the issue with the earliest maturity date
shall apply.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political subdivision thereof,
or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by any such governmental unit), (ii) a foreign government, international
organization, or any agency or instrumentality of either of the foregoing, (iii)
any organization (except certain farmers' cooperatives described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the Trustee or the Certificate Registrar based upon an Opinion of
Counsel that the holding of an Ownership Interest
18
in a Residual Certificate by such Person may cause the Trust Fund or any Person
having an Ownership Interest in any Class of Certificates, other than such
Person, to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the Transfer of an Ownership Interest in
a Residual Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any Class of
Regular Certificates for any Distribution Date, the Accrued Certificate Interest
in respect of such Class of Certificates for such Distribution Date, reduced
(other than with respect to the Class IO Certificates)(to not less than zero) by
(i) the product of (a) any Net Aggregate Prepayment Interest Shortfall for such
Distribution Date, multiplied by (b) a fraction, expressed as a decimal, the
numerator of which is the Accrued Certificate Interest in respect of such Class
of Certificates for such Distribution Date, and the denominator of which is the
aggregate Accrued Certificate Interest in respect of all the Classes of Regular
Certificates for such Distribution Date, and (ii) with respect to each such
Class (other than the Class IO Certificates), such Class' share of any
Certificate Deferred Interest allocated to such Class in accordance with Section
4.04(d).
"Distribution Account": The segregated account or accounts created
and maintained by the Paying Agent on behalf of the Trustee pursuant to Section
3.04(b) which shall be entitled "Norwest Bank Minnesota, National Association,
as Trustee, in trust for the registered holders of First Union National Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
1999-C4."
"Distribution Date": The 15th day of any month, or if such 15th day
is not a Business Day, the Business Day immediately succeeding, commencing on
January 18, 2000; provided, however that the Distribution Date will be no
earlier than the fourth Business Day following the Determination Date in the
month in which such Distribution Date occurs.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) any Mortgage Loan on or prior to its
Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Periodic Payment on such Mortgage Loan is scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date, the day of the
month set forth in the related Mortgage Note on which each Periodic Payment on
such Mortgage Loan had been scheduled to be first due; and (iii) any REO Loan,
the day of the month set forth in the related Mortgage Note on which each
Periodic Payment on the related Mortgage Loan had been scheduled to be first
due.
19
"Eligible Account": Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, and with respect to
deposits held for 30 days or more in such account the (a) long-term deposit or
unsecured debt obligations of which are rated at least (A) "AA" by Standard &
Poor's, or "A", provided that the short-term obligations of which are rated at
least "A-1" and (B) "A" by DCR (if then rated by DCR or, if not rated by DCR, an
equivalent rating from at least two other NRSROs) (or, with respect to any such
Rating Agency, such lower rating as will not result in qualification (if
applicable), downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the applicable Rating Agency), at any
time such funds are on deposit therein, or with respect to deposits held for
less than 30 days in such account the (b) short-term deposits of which are rated
at least "A-1" by Standard & Poor's and "D-1+" by DCR (if then rated by DCR or,
if not rated by DCR, an equivalent rating from at least two other NRSROs) (or,
with respect to any such Rating Agency, such lower rating as will not result in
qualification (if applicable), downgrading or withdrawal of the ratings then
assigned to the Certificates) as evidenced in writing by the applicable Rating
Agency at any time such funds are on deposit therein, or (ii) a segregated trust
account or accounts maintained with a federal or state chartered depository
institution or trust company acting in its fiduciary capacity, which, in the
case of a state chartered depository institution or trust company, is subject to
regulations regarding fiduciary funds on deposit therein substantially similar
to 12 CFR ss. 9.10(b), having in either case a combined capital and surplus of
at least $50,000,000 and subject to supervision or examination by federal or
state authority, or the use of such account would not, in and of itself, cause a
qualification, downgrading or withdrawal of the then-current rating assigned to
any Class of Certificates, as confirmed in writing by each Rating Agency.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, (i) Chapter 5 of the FNMA Multifamily Guide or any
successor provisions covering the same subject matter in the case of a Specially
Serviced Mortgage Loan as to which the related Mortgaged Property is multifamily
property or (ii) the American Society for Testing and Materials in the case of
Specially Serviced Mortgage Loan as to which the related Mortgaged Property is
not multifamily property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and other similar items in respect of the related Mortgaged
Property.
"Event of Default": One or more of the events described in Section
7.01(a).
"Exchange Act": Securities Exchange Act of 1934, as amended.
20
"Excluded Class": Any Class of Sequential Pay Certificates other
than the Class A-1 Certificates, Class A-2 Certificates, Class B Certificates,
Class C Certificates, Class D Certificates, Class E Certificates and Class F
Certificates.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Defaulted Mortgage Loan or REO Property (other than
a Mortgage Loan or REO Property, as the case may be, that was purchased by any
of the Mortgage Loan Sellers, pursuant to the related Mortgage Loan Purchase
Agreement, by the Majority Subordinate Certificateholder pursuant to Section
3.18(b), by the Master Servicer or the Special Servicer pursuant to Section
3.18(c) or by the Depositor, the Master Servicer, the Special Servicer, or the
Majority Subordinate Certificateholder pursuant to Section 9.01) that there has
been a recovery of all Insurance Proceeds, Liquidation Proceeds and other
payments or recoveries that the Special Servicer has determined, in accordance
with the Servicing Standard, will be ultimately recoverable.
"First Union Securities": First Union Securities, Inc. or its
successor in interest.
"FNMA": Federal National Mortgage Association or any successor.
"Grantor Trust": That certain "grantor trust" (within the meaning of
the Grantor Trust Provisions), the assets of which are the Grantor Trust Assets.
"Grantor Trust Assets": Any Additional Interest with respect to the
ARD Loans after their respective Anticipated Repayment Dates and amounts held
from time to time in the Distribution Account that represent Additional
Interest.
"Ground Lease": With respect to any Mortgage Loan for which the
Mortgagor has a leasehold interest in the related Mortgaged Property or space
lease within such Mortgaged Property, the lease agreement creating such
leasehold interest.
"Guaranty": With respect to a Credit Lease Loan, a guaranty
agreement executed by an affiliate of the related Tenant that guarantees the
Tenant's obligations under the related Credit Lease.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations now existing or
21
hereafter enacted, and specifically including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls ("PCBs"), radon gas,
petroleum and petroleum products and urea formaldehyde.
"Historical Liquidation Report": A report substantially containing
the information described in Exhibit S attached hereto, setting forth, among
other things, as of the close of business on the Determination Date immediately
preceding the preparation of such report, (i) the aggregate amount of
Liquidation Proceeds and expenses relating to each Final Recovery Determination
made, both during the related Collection Period and historically, and (ii) the
amount of Realized Losses occurring during the related Collection Period, set
forth on a Mortgage Loan-by-Mortgage Loan basis.
"Historical Loan Modification Report": A report substantially
containing the information described in Exhibit R attached hereto, setting
forth, among other things, those Mortgage Loans which, as of the close of
business on the Determination Date immediately preceding the preparation of such
report, have been modified pursuant to this Agreement (i) during the related
Collection Period and (ii) since the Cut-off Date, showing the original and the
revised terms thereof.
"Holder": A Certificateholder.
"HUD-Approved Servicer": A servicer approved by the Secretary of
Housing and Urban Development pursuant to Section 207 of the National Housing
Act.
"Impound Reserve": As defined in Section 3.16(c) hereof.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Master
Servicer, the Special Servicer, the Controlling Class Representative, the
Trustee and any and all Affiliates thereof, (ii) does not have any direct
financial interest in or any material indirect financial interest in any of the
Depositor, the Master Servicer, the Special Servicer, the Controlling Class
Representative, the Trustee or any Affiliate thereof, and (iii) is not connected
with the Depositor, the Master Servicer, the Controlling Class Representative,
the Special Servicer, the Trustee or any Affiliate thereof as an officer,
employee, promoter, underwriter, trustee, partner, director or Person performing
similar functions; provided, however, that a Person shall not fail to be
Independent of the Depositor, the Master Servicer, the Controlling Class
Representative, the Special Servicer, the Trustee or any Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of any class of
securities issued by the Depositor, the Master Servicer, the Special Servicer,
the Controlling Class Representative, the Trustee or any Affiliate thereof, as
the case may be.
22
"Independent Appraiser": An Independent professional real estate
appraiser who is a member in good standing of the Appraisal Institute, and, if
the State in which the subject Mortgaged Property is located certifies or
licenses appraisers, certified or licensed in such State, and in each such case,
who has a minimum of five years experience in the subject property type and
market.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by any
Person that owns, directly or indirectly, 35 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Master
Servicer, the Special Servicer, the Trustee or the Trust Fund, delivered to the
Trustee and the Master Servicer), so long as REMIC I does not receive or derive
any income from such Person and provided that the relationship between such
Person and REMIC I is at arm's length, all within the meaning of Treasury
Regulations Section 1.856-4(b)(5), or any other Person upon receipt by the
Trustee of an Opinion of Counsel, which shall be at no expense to the Master
Servicer, the Special Servicer, the Trustee or the Trust Fund, to the effect
that the taking of any action in respect of any REO Property by such Person,
subject to any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor will not cause such REO
Property to cease to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code, or cause any income realized in respect of such
REO Property to fail to qualify as Rents from Real Property.
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to
the extent such proceeds are not applied to the restoration of the related
Mortgaged Property, released to the Mortgagor, or any tenants or ground lessors,
as the case may be, pursuant to the terms of the related Mortgage or lease, in
accordance with the Servicing Standard.
"Insured Balloon Loan": Each Balloon Mortgage Loan that is insured
by an RVI Policy and identified as an Insured Balloon Loan on the Mortgage Loan
Schedule.
"Insured Event": With respect to an RVI Policy, any occurrence,
condition or event that gives rise or with the passage of time will give rise to
a claim under the RVI Policy.
"Intercreditor Agreement": With respect to the Split Note and the
related Other Note, the agreement dated as of December 30, 1997 among Xxxxxxx
Xxxxx Mortgage Capital Inc., LaSalle National Bank, ABN AMRO Bank N.V., and
Midland Loan Services, L.P., regarding
23
the administration of the Split Loan and the allocation of the amounts received
by the holder of the note comprising any portion thereof, as amended or modified
from time to time.
"Interest Accrual Period": With respect to each Distribution Date,
the calendar month prior to such Distribution Date.
"Interest Reserve Account": The segregated account created and
maintained by the Master Servicer pursuant to Section 3.04(c) on behalf of the
Trustee in trust for Certificateholders, which shall be entitled "First Union
National Bank, as Master Servicer for Norwest Bank Minnesota, National
Association, as Trustee, on behalf of and in trust for the registered holders of
First Union National Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C4".
"Interest Reserve Amount": With respect to each Interest Reserve
Loan and each Distribution Date that occurs during February of each year and
during January of each year that is not a leap year, an amount equal to one
day's interest at the related Mortgage Rate on the related Stated Principal
Balance as of the Due Date in the month in which such Distribution Date occurs
(but prior to the application of any amounts owed on such Due Date), to the
extent a Periodic Payment or P&I Advance is made in respect thereof for such Due
Date as of the related P&I Advance Date.
"Interest Reserve Loan": Each Mortgage Loan that is an Actual/360
Mortgage Loan.
"Interested Person": The Depositor, the Mortgage Loan Sellers, the
Master Servicer, the Special Servicer, any Independent Contractor hired by the
Special Servicer, any Holder of a Certificate, or any Affiliate of any such
Person.
"Internet Website": The Internet Websites maintained by the Trustee
and, if applicable, the Master Servicer initially located at
"xxx.xxxxxxx.xxx/xxxx" and "xxx.xxxxxxxxxx.xxx", respectively, or such other
address as provided to the parties hereto from time to time.
"Investment Account": As defined in Section 3.06(a).
"Issue Price": With respect to each Class of Certificates, the
"issue price" as defined in the Code and Treasury regulations promulgated
thereunder.
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Collection Period, other than Penalty Interest,
whether as payments, Insurance Proceeds, Liquidation Proceeds or otherwise,
which represent late collections of the principal
24
and/or interest portions of a Scheduled Payment (other than a Balloon Payment)
or an Assumed Scheduled Payment in respect of such Mortgage Loan due or deemed
due on a Due Date in a previous Collection Period, and not previously recovered.
With respect to any REO Loan, all amounts received in connection with the
related REO Property during any Collection Period, whether as Insurance
Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which represent late
collections of the principal and/or interest portions of a Scheduled Payment
(other than a Balloon Payment) or an Assumed Scheduled Payment in respect of the
predecessor Mortgage Loan or of an Assumed Scheduled Payment in respect of such
REO Loan due or deemed due on a Due Date in a previous Collection Period and not
previously recovered.
"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 the related Mortgage
Loan Purchase Agreement; or (iv) such Mortgage Loan is purchased by the Majority
Subordinate Certificateholder pursuant to Section 3.18(b), by the Master
Servicer or the Special Servicer pursuant to Section 3.18(c) or by the
Depositor, the Master Servicer, the Special Servicer or the Majority Subordinate
Certificateholder pursuant to Section 9.01. With respect to any REO Property
(and the related REO Loan), any of the following events: (i) a Final Recovery
Determination is made with respect to such REO Property; or (ii) such REO
Property is purchased by the Depositor, the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder pursuant to Section 9.01.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the Special
Servicer in connection with: (i) the taking of all or a part of a Mortgaged
Property or REO Property by exercise of the power of eminent domain or
condemnation, subject, however, to the rights of any tenants and ground lessors,
as the case may be, and the terms of the related Mortgage; (ii) the liquidation
of a Mortgaged Property or other collateral constituting security for a
defaulted Mortgage Loan, through trustee's sale, foreclosure sale, REO
Disposition or otherwise, exclusive of any portion thereof required to be
released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (iii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iv) the
purchase of a Defaulted Mortgage Loan by the Majority Subordinate
Certificateholder pursuant to Section 3.18(b) or by the Master Servicer or the
Special Servicer pursuant to Section 3.18(c) or any other sale thereof pursuant
to Section 3.18(d); (v) the repurchase of a Mortgage Loan by a Mortgage Loan
Seller pursuant to the related Mortgage Loan Purchase Agreement; or (vi) the
purchase of a Mortgage Loan or REO Property by the Depositor, the Master
Servicer, the Special Servicer, or the Majority Subordinate Certificateholder
pursuant to Section 9.01.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of any
date of determination, a fraction, expressed as a percentage, the numerator of
which is the then current
25
principal amount of such Mortgage Loan, and the denominator of which is the
Appraised Value of the related Mortgaged Property.
"Lockout Period": With respect to any Mortgage Note that prohibits
the Mortgagor from prepaying such Mortgage Loan until a date specified in such
Mortgage Note, the period from the Closing Date until the such specified date.
"Majority Subordinate Certificateholder": As of any date of
determination, any single Holder of Certificates entitled to greater than 50% of
the Voting Rights allocated to the Controlling Class; provided, however, that if
there is no single Holder of Certificates entitled to greater than 50% of the
Voting Rights allocated to such Class, then the Majority Subordinate
Certificateholder shall be the single Holder of Certificates with the largest
percentage of Voting Rights allocated to such Class. With respect to determining
the Majority Subordinate Certificateholder, the Class A-1 Certificates and the
Class A-2 Certificates shall be deemed to be a single Class of Certificates,
with such Voting Rights allocated among the Holders of Certificates of such
Classes in proportion to the respective Certificate Principal Balances of such
Certificates as of such date of determination.
"Master Servicer": First Union National Bank, its successor in
interest (including the Trustee as successor pursuant to Section 7.02), or any
successor master servicer appointed as herein provided.
"Master Servicing Fee": With respect to each Mortgage Loan and REO
Loan, the fee payable to the Master Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage Loan, (a)
the percentage set forth under the column "Loan Administration Cost Rate" on the
Mortgage Loan Schedule that corresponds to such Mortgage Loan minus (b) the
Trustee Fee Rate and, if such Mortgage Loan is a Semi-Annual Mortgage Loan, the
rate at which the Swap Fee accrues.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust, deed to secure debt or similar instrument that secures the Mortgage Note
and creates a lien on the fee or leasehold interest in the related Mortgaged
Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as
to which the Mortgage Rate has been reduced through a modification and any
Distribution Date, the amount by which (a) interest accrued at such reduced rate
is less than (b) the amount of interest that would have accrued on such Mortgage
Loan at the Mortgage Rate before such reduction, to the extent such amount has
been added to the outstanding principal balance of such Mortgage Loan.
26
"Mortgage File": With respect to any Mortgage Loan, collectively the
following documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof (or a lost note
affidavit and indemnity with a copy of such Mortgage Note
attached thereto), together with any and all intervening
endorsements thereon, endorsed on its face or by allonge
attached thereto (without recourse, representation or
warranty, express or implied) to the order of Norwest Bank
Minnesota, National Association, as trustee for the registered
holders of First Union National Bank Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series
1999-C4 or in blank;
(ii) an original or copy of the Mortgage, together with any and all
intervening assignments thereof, in each case with evidence of
recording indicated thereon;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together
with any and all intervening assignments thereof, in each case
with evidence of recording indicated thereon;
(iv) an original executed assignment, in recordable form, of (a)
the Mortgage, (b) any related Assignment of Leases (if such
item is a document separate from the Mortgage) and (c) any
other recorded document relating to the Mortgage Loan
otherwise included in the Mortgage File, in favor of Norwest
Bank Minnesota, National Association, as trustee for the
registered holders of First Union National Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 1999-C4, or in blank;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan, in favor of Norwest Bank Minnesota,
National Association, as trustee for the registered holders of
First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 1999-C4,
or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances
where the terms or provisions of the Mortgage or Mortgage Note
have been consolidated or modified or the Mortgage Loan has
been assumed;
27
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been
issued, an original or copy of an irrevocable, binding
commitment to issue such title insurance policy; and
(viii)any filed copies (bearing evidence of filing) or other
evidence of filing satisfactory to the Trustee of any prior
UCC Financing Statements in favor of the originator of such
Mortgage Loan or in favor of any assignee prior to the Trustee
(but only to the extent the Mortgage Loan Seller had
possession of such UCC Financing Statements on or before the
Closing Date) and, if there is an effective UCC Financing
Statement and continuation statements in favor of the Mortgage
Loan Seller on record with the applicable public office for
UCC Financing Statements, an original UCC-2 or UCC-3
assignment, as appropriate, in form suitable for filing, as
appropriate, in favor of Norwest Bank Minnesota, National
Association, as trustee for the registered holders of First
Union National Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 1999-C4, or in
blank;
(ix) an original or copy of any Ground Lease, any Credit Lease and
any RVI Policy or Guaranty; and
(x) any subordination, standstill or intercreditor agreement
relating to any permitted debt of the Mortgagor.
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or the Custodian for documents described in clauses
(vi) and (ix) (solely with respect to any Guaranty) of this definition, shall be
deemed to include only such documents to the extent the Trustee or Custodian has
actual knowledge of their existence; and provided, further, however, that, with
respect to the Split Note, all of the items set forth above will be held
pursuant to the Other Trust Fund and items (iv) and (v) will not be endorsed as
required above.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trust Fund pursuant to Section 2.01 and listed on the Mortgage Loan
Schedule and from time to time held in the Trust Fund. As used herein, the term
"Mortgage Loan" includes the related Mortgage Note, Mortgage, any RVI Policy and
other security documents contained in the related Mortgage File; provided, the
Mortgage Loan regarding the Split Note will not include the related documents
(except the Mortgage Note, which shall be considered such a related document).
28
"Mortgage Loan Purchase Agreements": Those certain mortgage loan
purchase agreements, each dated as of December 1, 1999, between the Depositor
and the respective Mortgage Loan Seller and relating to the transfer of the
related Mortgage Loans to the Depositor.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of REMIC I, attached hereto as Exhibit B
and in a computer readable format. Such list shall set forth the following
information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code) and
name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Periodic Payment due on the first Due Date
following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) original term to stated maturity, (B) remaining term
to stated maturity and (C) the Stated Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the original and remaining amortization term;
(ix) whether the Mortgage Loan is secured by a Ground Lease;
(x) the Master Servicing Fee Rate;
(xi) whether such Mortgage Loan is an ARD Loan and if so the
Anticipated Repayment Date and Additional Interest Rate for
such ARD Loan;
(xii) whether the Mortgage Loan is an Actual-360 Mortgage Loan;
(xiii) the related Mortgage Loan Seller;
(xiv) whether the Mortgage Loan is a Credit Lease Loan and if so,
the related Tenant or guarantor of such Credit Lease Loan;
29
(xv) whether such Mortgage Loan is insured by an RVI Policy;
(xvi) whether such Mortgage Loan is cross-defaulted with any other
Mortgage Loan;
(xvii) whether such Mortgage Loan is a Defeasance Loan, Semi-Annual
Mortgage Loan, or Insured Balloon Loan;
(xviii) whether the Mortgage Loan is secured by a letter of credit;
(xix) whether payments on such Mortgage Loan are made to a
lock-box; and
(xx) the amount of any Reserve Funds escrowed in respect of each
Mortgage Loan.
"Mortgage Loan Seller": Any of First Union National Bank or its
successor in interest or Xxxxxxx Xxxxx Mortgage Capital Inc. or its successor in
interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
successor REO Loans.
"Mortgage Rate": With respect to (i) any Mortgage Loan on or prior
to its Stated Maturity Date, the fixed annualized rate, not including any
Additional Interest Rate, at which interest is scheduled (in the absence of a
default) to accrue on such Mortgage Loan from time to time in accordance with
the related Mortgage Note and applicable law; (ii) any Mortgage Loan after its
Stated Maturity Date, the annualized rate described in clause (i) above
determined without regard to the passage of such Stated Maturity Date, but
giving effect to any modification thereof as contemplated by Section 3.20; and
(iii) any REO Loan, the annualized rate described in clause (i) or (ii), as
applicable, above determined as if the predecessor Mortgage Loan had remained
outstanding, provided, however, that if any Mortgage Loan does not accrue
interest on the basis of a 360-day year consisting of twelve 30-day months,
then, solely for purposes of calculating the Pass-Through Rates, the Mortgage
Rate of such Mortgage Loan for any one-month period preceding a related Due Date
will be the annualized rate at which interest would have to accrue in respect of
such Mortgage Loan on the basis of a 360-day year consisting of twelve 30-day
months in order to produce the aggregate amount of interest actually accrued
(exclusive of Penalty Interest or Additional Interest) in respect of such
Mortgage Loan during such one-month period at the related Mortgage Rate;
provided, however, that with respect to each Interest Reserve Loan,
30
the Mortgage Rate for the one-month period (A) preceding the Due Dates that
occur in January and February in any year which is not a leap year or preceding
the Due Date that occurs in February in any year which is a leap year, and (B)
preceding the Due Date in March, will be the per annum rate stated in the
related Mortgage Note.
"Mortgaged Property": The property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
voluntary Principal Prepayments on the Mortgage Loans during the related
Collection Period, exceeds (b) the aggregate amount deposited by the Master
Servicer in the Certificate Account for such Distribution Date pursuant to
Section 3.19(a) in connection with such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to the Certificate Account,
the Interest Reserve Account, any Servicing Account, any Reserve Account, the
Distribution Account or the REO Account (if any) for any Collection Period, the
amount, if any, by which the aggregate of all interest and other income realized
during such Collection Period on funds held in such account, exceeds the
aggregate of all losses, if any, incurred during such Collection Period in
connection with the investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to the Certificate Account, the
Interest Reserve Account, any Servicing Account, any Reserve Account, the
Distribution Account or the REO Account (if any) for any Collection Period, the
amount by which the aggregate of all losses, if any, incurred during such
Collection Period in connection with the investment of funds held in such
account in accordance with Section 3.06, exceeds the aggregate of all interest
and other income realized during such Collection Period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or any REO
Loan, as of any date of determination, a rate per annum equal to the related
Mortgage Rate minus the sum of the Trustee Fee Rate, the applicable Master
Servicing Fee Rate and, if such Mortgage Loan is a Semi-Annual Mortgage Loan,
the rate at which the Swap Fee accrues.
"Net Operating Income or NOI": As defined in and determined in
accordance with the provisions of Exhibit E attached hereto.
31
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of REMIC I, including any lease renewed,
modified or extended on behalf of REMIC I if REMIC I has the right to
renegotiate the terms of such lease.
"NOI Adjustment Worksheet": A report prepared by the Special
Servicer, with respect to each Specially Serviced Mortgage Loan and REO Loan and
by the Master Servicer with respect to each other Mortgage Loan substantially
containing the content described in Exhibit T attached hereto, presenting the
computations made in accordance with the methodology described in Exhibit T to
"normalize" the full year net operating income and debt service coverage numbers
used in the other reports required by this Agreement and in accordance with the
most recent CMSA standards.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of any Mortgage Loan or REO Loan by the Master
Servicer or Trustee, as the case may be, that, as determined by the Master
Servicer or the Trustee; as applicable, in accordance with the Servicing
Standard with respect to such P&I Advance will not be ultimately recoverable
from Late Collections, Insurance Proceeds or Liquidation Proceeds, or any other
recovery on or in respect of such Mortgage Loan or REO Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Loan by the
Master Servicer, the Special Servicer or Trustee, as the case may be, that, as
determined by the Master Servicer, the Special Servicer or the Trustee in
accordance with the Servicing Standard, will not be ultimately recoverable from
Late Collections, Insurance Proceeds, Liquidation Proceeds, or any other
recovery on or in respect of such Mortgage Loan or REO Property.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class C, Class D, Class E, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class R-I, Class R-II or Class R-III Certificate.
"Non-United States Person": Any Person other than a United States
Person.
"NRSRO": Nationally recognized statistical ratings organization.
"Officers' Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer, as the case may be, or by a
Responsible Officer of the Trustee.
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"Operating Statement Analysis": With respect to each Mortgage Loan
and REO Mortgaged Property, a report prepared by the Special Servicer with
respect to each Specially Serviced Mortgage Loan and REO Loan and by the Master
Servicer with respect to each other Mortgage Loan substantially containing the
content described in Exhibit U attached hereto and conforming to the most recent
CMSA standard.
"Opinion of Counsel": A written opinion of counsel (which counsel
may be a salaried counsel for the Depositor, the Master Servicer and the Special
Servicer) acceptable to and delivered to the Trustee or the Master Servicer, as
the case may be except that any opinion of counsel relating to (a) the
qualification of REMIC I, REMIC II or REMIC III as a REMIC; (b) the
qualification of the Grantor Trust as a grantor trust; (c) compliance with REMIC
provisions or (d) the resignation of the Master Servicer, Special Servicer or
Depositor pursuant to Section 6.04 must be an opinion of counsel who is in fact
Independent of the Master Servicer, Special Servicer or Depositor; as
applicable.
"Original Class Principal Balance": With respect to any Class of
Regular Certificates (other than the Class IO Certificates), the initial Class
Principal Balance thereof as of the Closing Date, in each case as specified in
the Preliminary Statement.
"Original Notional Amount": $885,738,326.
"Other Mortgage Loan": The mortgage loan related to the Other Note.
"Other Note": With respect to the Split Loan, the note that is not
part of the Trust Fund.
"Other Note PSA": The Pooling and Servicing Agreement dated as of
December 1, 1997, among Commercial Mortgage Acceptance Corp., as depositor,
Midland Loan Services, L.P., as master servicer and group 1 special servicer,
CRIIMI MAE Services Limited Partnership as group 2 special servicer and NOM
special servicer, LaSalle National Bank, as trustee and ABN AMRO Bank, N.V. as
fiscal agent, as amended or modified form time to time.
"Other Servicer": With respect to the Other Note, the servicer of
such Other Note, and its successors and assigns.
"Other Special Servicer": With respect to the Other Note, the
special servicer of such Other Note, and its successors and assigns.
"Other Special Trustee": With respect to the Other Note, the special
trustee of such Other Note, and its successors and assigns.
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"Other Trust Fund": The trust fund created pursuant to the Other
Note PSA.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"Pass-Through Rate": With respect to:
(i) the Class A-1 Certificates for any Distribution Date, 7.184%
per annum;
(ii) the Class A-2 Certificates for any Distribution Date, 7.390%
per annum;
(iii) the Class B Certificates for any Distribution Date, the
lesser of (A) 7.617% per annum and (B) the Weighted Average
REMIC I Remittance Rate for such Distribution Date;
(iv) the Class C Certificates for any Distribution Date, the
lesser of (A) 7.793% per annum and (B) the Weighted Average
REMIC I Remittance Rate for such Distribution Date;
(v) the Class D Certificates for any Distribution Date, the
lesser of (A) 7.936% per annum and (B) the Weighted Average
REMIC I Remittance Rate for such Distribution Date;
(vi) the Class E Certificates for any Distribution Date, the
Weighted Average REMIC I Remittance Rate for such
Distribution Date;
(vii) the Class F Certificates for any Distribution Date, the
Weighted Average REMIC I Remittance Rate for such
Distribution Date;
(viii) the Class G Certificates for any Distribution Date, 6.500%
per annum;
(ix) the Class H Certificates for any Distribution Date, 6.500%
per annum;
(x) the Class J Certificates for any Distribution Date, 6.500%
per annum;
(xi) the Class K Certificates for any Distribution Date, 6.500%
per annum;
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(xii) the Class L Certificates for any Distribution Date, 6.500%
per annum;
(xiii) the Class M Certificates for any Distribution Date, 6.500%
per annum;
(xiv) the Class N Certificates for any Distribution Date, 6.500%
per annum; and
(xv) each Component of the Class IO Certificates for any
Distribution Date, the excess, if any, of the REMIC II
Remittance Rate for such Distribution Date, over the
Pass-Through Rate applicable for such Distribution Date to
the Class of Sequential Pay Certificates as to which it is
the Corresponding Component.
"Paying Agent": The paying agent appointed pursuant to Section 8.13.
If no such paying agent has been appointed or if such paying agent has been so
appointed, but the Trustee shall have terminated such appointment, then the
Trustee shall be the Paying Agent.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Master Servicer or the Trustee pursuant to Section 4.03(a) and (b).
"P&I Advance Date": The Business Day immediately preceding each
Distribution Date.
"Penalty Interest": With respect to any Mortgage Loan (or successor
REO Loan), any amounts collected thereon, other than late payment charges,
Additional Interest, Prepayment Premiums or Yield Maintenance Charges, that
represent penalty interest (arising out of a default) in excess of interest on
the Stated Principal Balance of such Mortgage Loan (or successor REO Loan)
accrued at the related Mortgage Rate.
"Percentage Interest": With respect to any Regular Certificate, the
portion of the relevant Class evidenced by such Certificate, expressed as a
percentage, the numerator of which is the Certificate Principal Balance or
Certificate Notional Amount, as the case may be, of such Certificate as of the
Closing Date, as specified on the face thereof, and the denominator of which is
the Original Class Principal Balance or Original Notional Amount, as the case
may be, of the relevant Class. With respect to a Residual Certificate, the
percentage interest in distributions to be made with respect to the relevant
Class, as stated on the face of such Certificate.
"Periodic Payment": With respect to any Mortgage Loan as of any Due
Date, the scheduled payment of principal and/or interest on such Mortgage Loan,
including any Balloon Payment, that is actually payable by the related Mortgagor
from time to time under the terms of the related Mortgage Note (as such terms
may be changed or modified in connection with a
35
bankruptcy or similar proceeding involving the related Mortgagor or by reason of
a modification, waiver or amendment granted or agreed to by the Special Servicer
pursuant to Section 3.20).
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Trustee if
otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States
or any agency or instrumentality thereof (having original
maturities of not more than 365 days), provided such
obligations are backed by the full faith and credit of the
United States. Such obligations must be limited to those
instruments that have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change or be
liquidated prior to maturity. Interest may either be fixed or
variable. If such interest is variable, interest must be tied
to a single interest rate index plus a single fixed spread (if
any), and move proportionately with that index;
(ii) repurchase obligations with respect to any security described
in clause (i) above (having original maturities of not more
than 365 days), provided that the short-term deposit or debt
obligations, of the party agreeing to repurchase such
obligations are rated in the highest rating categories of each
of Standard & Poor's and DCR or such lower rating as will not
result in qualification, downgrading or withdrawal of the
ratings then assigned to the Certificates, as evidenced in
writing by the Rating Agencies. In addition, any such item
must not have an "r" highlighter affixed to its rating by
Standard & Poor's, and its terms must have a predetermined
fixed dollar amount of principal due at maturity that cannot
vary or change. Interest may either be fixed or variable. If
such interest is variable, interest must be tied to a single
interest rate index plus a single fixed spread (if any), and
move proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company organized
under the laws of the United States or any state thereof
(having original maturities of not more than 365 days), the
short term obligations of which are rated in the highest
rating categories of each of Standard & Poor's and DCR or such
lower rating as will not result in qualification, downgrading
or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the Rating Agencies.
In addition, its terms should have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or
change. In addition, any such item must not have an "r"
highlighter affixed to its rating by Standard & Poor's, and
its terms must have a predetermined fixed
36
dollar amount of principal due at maturity that cannot vary or
change. Interest may either be fixed or variable. If such
interest is variable, interest must be tied to a single
interest rate index plus a single fixed spread (if any), and
move proportionately with that index;
(iv) commercial paper (having original maturities of not more than
365 days) of any corporation incorporated under the laws of
the United States or any state thereof (or if not so
incorporated, the commercial paper is United States Dollar
denominated and amounts payable thereunder are not subject to
any withholding imposed by any non-United States jurisdiction)
which is rated in the highest rating category of each of
Standard & Poor's and DCR or such lower rating as will not
result in qualification, downgrading or withdrawal of the
ratings then assigned to the Certificates, as evidenced in
writing by the Rating Agencies. The commercial paper by its
terms must have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change. In
addition, any such item must not have an "r" highlighter
affixed to its rating by Standard & Poor's, and its terms must
have a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change. Interest may either by
fixed or variable. If such interest is variable, interest must
be tied to a single interest rate index plus a single fixed
spread (if any), and move proportionately with that index;
(v) units of money market funds rated AAAm or AAAm-G by Standard &
Poor's and in the highest rating category of DCR (or such
lower rating as will not result in qualification, downgrading
or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the Rating Agencies)
and which seeks to maintain a constant net asset value. In
addition, any such item must not have an "r" highlighter
affixed to its rating by Standard & Poor's, and its terms must
have a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change; and
(vi) any other obligation or security acceptable to each Rating
Agency, evidence of which acceptability shall be provided in
writing by each Rating Agency to the Master Servicer, the
Special Servicer and the Trustee;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; and (2) no investment described hereunder may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity.
37
"Permitted Transferee": Any Transferee of a Residual Certificate
other than a Disqualified Organization or Non-United States Person.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plurality Residual Certificateholder": As to any taxable year of
REMIC I, REMIC II or REMIC III, the Holder of Certificates holding the largest
Percentage Interest of the related Class of Residual Certificates.
"Policy Termination Event": With respect to any RVI Policy, any
abatement, rescission, cancellation, termination, contest, legal process,
arbitration or disavowal of liability thereunder by the related insurer.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, 0% CPR (within the meaning of the
Prospectus), except that it is assumed that each ARD Loan is repaid on its
Anticipated Repayment Date.
"Prepayment Interest Excess": With respect to any Mortgage Loan that
was subject to a Principal Prepayment in full or in part during any Collection
Period, which Principal Prepayment was applied to such Mortgage Loan following
such Mortgage Loan's Due Date in such Collection Period, (or, with respect to
any Semi-Annual Mortgage Loan, following the 1st day of the month), the amount
of interest (net of the related Master Servicing Fee and if applicable, the
Additional Interest) accrued on the amount of such Principal Prepayment during
the period from and after such Due Date (or, with respect to any Semi-Annual
Mortgage Loan, following the 1st day of the month) and ending on the date such
Principal Prepayment was applied to such Mortgage Loan, to the extent collected
(exclusive of any related Prepayment Premium or Yield Maintenance Charge
actually collected).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
that was subject to a voluntary Principal Prepayment in full or in part during
any Collection Period, which Principal Prepayment was applied to such Mortgage
Loan prior to such Mortgage Loan's Due Date (or, with respect to any Semi-Annual
Mortgage Loan, prior to the 1st day of the month) in such Collection Period, the
amount of interest, to the extent not collected from the related Mortgagor
(without regard to any Prepayment Premium or Yield Maintenance Charge actually
collected), that would have accrued at a rate per annum equal to the sum of (x)
the related Net Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee
Rate, on the amount of such Principal Prepayment during the period commencing on
the date as of which such Principal Prepayment was applied to such Mortgage Loan
and ending on the day immediately preceding
38
such Due Date (or, with respect to any Semi-Annual Mortgage Loan, prior to the
1st day of the month), inclusive.
"Prepayment Premium": Any premium, penalty or fee (other than a
Yield Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor in connection with a Principal Prepayment.
"Prime Rate": The "prime rate" published in the "Money Rates"
section of THE WALL STREET JOURNAL, as such "prime rate" may change from time to
time. If THE WALL STREET JOURNAL ceases to publish the "prime rate", then the
Master Servicer shall select an equivalent publication that publishes such
"prime rate"; and if such "prime rate" is no longer generally published or is
limited, regulated or administered by a governmental or quasi-governmental body,
then the Master Servicer shall select a comparable interest rate index. In
either case, such selection shall be made by the Master Servicer in its sole
discretion and the Master Servicer shall notify the Trustee and the Special
Servicer in writing of its selection.
"Principal Distribution Amount": With respect to any Distribution
Date, the aggregate of the following:
(a) the aggregate of the principal portions of all Scheduled
Payments (other than Balloon Payments) and any Assumed Scheduled Payments
due or deemed due in respect of the Mortgage Loans for their respective
Due Dates occurring during the related Collection Period, to the extent
not previously received or advanced with respect to a Distribution Date
prior to the related Collection Period;
(b) the aggregate of all Principal Prepayments received on the
Mortgage Loans during the related Collection Period;
(c) with respect to any Mortgage Loan as to which the related Stated
Maturity Date occurred during or prior to the related Collection Period,
any payment of principal (other than a Principal Prepayment) made by or on
behalf of the related Mortgagor during the related Collection Period
(including any Balloon Payment), net of any portion of such payment that
represents a recovery of the principal portion of any Scheduled Payment
(other than a Balloon Payment) due, or the principal portion of any
Assumed Scheduled Payment deemed due, in respect of such Mortgage Loan on
a Due Date during or prior to the related Collection Period and not
previously recovered;
(d) the aggregate of the principal portion of all Liquidation
Proceeds, Insurance Proceeds and, to the extent not otherwise included in
clause (a), (b) or (c) above, payments that were received on the Mortgage
Loans during the related Collection Period and that were identified and
applied by the Master Servicer and/or Special Servicer as recoveries
39
of principal of such Mortgage Loans, in each case net of any portion of
such amounts that represents a recovery of the principal portion of any
Scheduled Payment (other than a Balloon Payment) due, or of the principal
portion of any Assumed Scheduled Payment deemed due, in respect of the
related Mortgage Loan on a Due Date during or prior to the related
Collection Period and not previously recovered;
(e) with respect to any REO Properties, the aggregate of the
principal portions of all Assumed Scheduled Payments deemed due in respect
of the related REO Loans for their respective Due Dates occurring during
the related Collection Period;
(f) with respect to any REO Properties, the aggregate of all
Liquidation Proceeds, Insurance Proceeds and REO Revenues that were
received during the related Collection Period on such REO Properties and
that were identified and applied by the Master Servicer and/or Special
Servicer as recoveries of principal of the related REO Loans, in each case
net of any portion of such amounts that represents a recovery of the
principal portion of any Scheduled Payment (other than a Balloon Payment)
due, or of the principal portion of any Assumed Scheduled Payment deemed
due, in respect of the related REO Loan or the predecessor Mortgage Loan
on a Due Date during or prior to the related Collection Period and not
previously recovered; and
(g) if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal Distribution
Amount for the immediately preceding Distribution Date, over the aggregate
distributions of principal made on the Certificates on such immediately
preceding Distribution Date pursuant to Section 4.01.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan that is received in advance of its scheduled Due
Date; and provided that it shall not include a payment of principal that is
accompanied by an amount of interest representing scheduled interest due on any
date or dates in any month or months subsequent to the month of prepayment.
"Principal Recovery Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer out of
certain related recoveries pursuant to the second paragraph of Section 3.11(c).
"Principal Recovery Fee Rate": With respect to all amounts set forth
in the third paragraph of Section 3.11(c), 1.00%.
"Privileged Person": Any Certificateholder, Certificate Owner, any
Person identified by any Certificateholder or Certificate Owner as a prospective
transferee of a Certificate
40
or interest therein, any Rating Agency, either Mortgage Loan Seller, any
Underwriter or any party hereto.
"Proposed Successor": As defined in Section 6.04.
"Prospectus": The prospectus dated December 8, 1999, as supplemented
by the Prospectus Supplement, relating to the Registered Certificates.
"Prospectus Supplement": The final prospectus supplement dated
December 14, 1999 of the Depositor relating to the registration of the
Registered Certificates under the Securities Act.
"Purchase Price": With respect to any Mortgage Loan to be purchased
by a Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase
Agreement, by the Majority Subordinate Certificateholder pursuant to Section
3.18(b), by the Master Servicer or the Special Servicer pursuant to Section
3.18(c) or by the Depositor, the Special Servicer, the Majority Subordinate
Certificateholder or the Master Servicer pursuant to Section 9.01 or to be
otherwise sold pursuant to Section 3.18(d), a cash price equal to the
outstanding principal balance of such Mortgage Loan as of the date of purchase,
together with (a) all accrued and unpaid interest on such Mortgage Loan at the
related Mortgage Rate to but not including the Due Date in the Collection Period
of purchase plus any accrued interest on P&I Advances made with respect to such
Mortgage Loan, (b) all related and unreimbursed Servicing Advances plus any
accrued interest thereon, (c) any reasonable costs and expenses incurred by the
Master Servicer or the Trust Fund in connection with any such purchase by a
Mortgage Loan Seller (to the extent not included in clause (b) above) and (d)
any Additional Trust Fund Expenses in respect of such Mortgage Loan; provided,
that the Purchase Price shall not be reduced by any outstanding P&I Advance.
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction (i) with a minimum claims paying ability rating of at least "A" by
Standard & Poor's and DCR (if then rated by DCR and if not rated by DCR, an
equivalent rating from at least two other NRSROs) (or the obligations of which
are guaranteed or backed by a company having such a claims paying ability) and
(ii) with respect to the fidelity bond and errors and omissions Insurance Policy
required to be maintained pursuant to Section 3.07(c), an insurance company that
has a claims paying ability rated no lower than two rating categories (without
regard to pluses or minuses or numerical qualifications) below the rating
assigned to the then highest rated outstanding Certificate (or, with respect to
the required DCR rating, if then rated by DCR), but in no event lower than "A"
by Standard & Poor's and DCR, 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.
41
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding Stated Principal Balance,
after application of all scheduled payments of principal and interest due during
or prior to the month of substitution, not in excess of the Stated Principal
Balance of the deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs; (ii) have a Mortgage Rate not less than
the Mortgage Rate of the deleted Mortgage Loan; (iii) have the same Due Date as
the deleted Mortgage Loan; (iv) accrue interest on the same basis as the deleted
Mortgage Loan (for example, on the basis of a 360-day year consisting of twelve
30-day months); (v) have a remaining term to stated maturity not greater than,
and not more than two years less than, the remaining term to stated maturity of
the deleted Mortgage Loan; (vi) have an original Loan-to-Value Ratio not higher
than that of the deleted Mortgage Loan and a current Loan-to-Value Ratio not
higher than the then current Loan-to-Value Ratio of the deleted Mortgage Loan;
(vii) comply as of the date of substitution with all of the representations and
warranties set forth in the Mortgage Loan Purchase Agreement; (viii) have an
Environmental Assessment that indicates no adverse environmental conditions with
respect to the related Mortgaged Property and which will be delivered as a part
of the related Mortgage File; (ix) have an original Debt Service Coverage Ratio
of not less than the original Debt Service Coverage Ratio of the deleted
Mortgage Loan and a current Debt Service Coverage Ratio of not less than the
current Debt Service Coverage Ratio of the deleted Mortgage Loan; (x) be
determined by an Opinion of Counsel (at the applicable Mortgage Loan Seller's
expense) to be a "qualified replacement mortgage" within the meaning of Section
860G(a)(4) of the Code; (xi) not have a maturity date after the date two years
prior to the Rated Final Distribution Date; (xii) not be substituted for a
deleted Mortgage Loan unless the Trustee has received prior confirmation in
writing by each Rating Agency that such substitution will not result in the
withdrawal, downgrade, or qualification of the rating assigned by the Rating
Agency to any Class of Certificates then rated by the Rating Agency (the cost,
if any, of obtaining such confirmation to be paid by the applicable Mortgage
Loan Seller); (xiii) have a date of origination that is not more than 12 months
prior to the date of substitution; (xiv) have been approved by the Controlling
Class Representative (or, if there is no Controlling Class Representative then
serving, by the Holders of Certificates representing a majority of the Voting
Rights allocated to the Controlling Class), which approval may not be
unreasonably withheld or delayed; and (xv) not be substituted for a deleted
Mortgage Loan if it would result in the termination of the REMIC status of any
of the REMICs established under this Agreement or the imposition of tax on any
of such REMICs other than a tax on income expressly permitted or contemplated to
be received by the terms of this Agreement, as determined by an Opinion of
Counsel. In the event that one or more mortgage loans are substituted for one or
more deleted Mortgage Loans, then the amounts described in clause (i) shall be
determined on the basis of aggregate principal balances and the rates described
in clause (ii) above and the remaining term to stated maturity referred to in
clause (v) above shall be determined on a weighted average basis. When a
Qualified Substitute Mortgage Loan is substituted for a deleted Mortgage Loan,
the applicable Mortgage Loan Seller shall certify that the Mortgage Loan meets
all of the requirements of the above definition and shall send such
certification to the Trustee.
42
"Rated Final Distribution Date": The Distribution Date in December,
2031, the first Distribution Date after the 24th month following the end of the
amortization term for the Mortgage Loan that, as of the Cut-off Date, has the
longest remaining amortization term.
"Rating Agency": Each of Standard & Poor's and DCR.
"Realized Loss": With respect to: (1) each Defaulted Mortgage Loan
as to which a Final Recovery Determination has been made, or with respect to any
successor REO Loan as to which a Final Recovery Determination has been made as
to the related REO Property, an amount (not less than zero) equal to (a) the
unpaid principal balance of such Mortgage Loan or REO Loan, as the case may be,
as of the commencement of the Collection Period in which the Final Recovery
Determination was made, plus (b) without taking into account the amount
described in subclause (1)(d) of this definition, all accrued but unpaid
interest on such Mortgage Loan or such REO Loan, as the case may be, at the
related Mortgage Rate to but not including the Due Date in the Collection Period
in which the Final Recovery Determination was made (exclusive of any portion
thereof that constitutes default interest in excess of the Mortgage Rate,
Additional Interest, Prepayment Premiums or Yield Maintenance Charges), plus (c)
any related unreimbursed Servicing Advances as of the commencement of the
Collection Period in which the Final Recovery Determination was made, together
with any new related Servicing Advances made during such Collection Period,
minus (d) all payments and proceeds, if any, received in respect of such
Mortgage Loan or the REO Property that relates to such REO Loan, as the case may
be, during the Collection Period in which such Final Recovery Determination was
made; (2) each Defaulted Mortgage Loan as to which any portion of the principal
or previously accrued interest (other than Additional Interest and Penalty
Interest) payable thereunder was canceled in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Special Servicer
pursuant to Section 3.20, the amount of such principal and/or interest so
canceled; and (3) each Mortgage Loan as to which the Mortgage Rate thereon has
been permanently reduced and not recaptured for any period in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Special Servicer pursuant to Section 3.20, the amount of the consequent
reduction in the interest portion of each successive Periodic Payment due
thereon (each such Realized Loss shall be deemed to have been incurred on the
Due Date for each affected Periodic Payment).
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registered Certificate": Any Class A-1, Class A-2, Class B, or
Class IO Certificate.
"Regular Certificate": Any REMIC III Certificate other than a Class
R-III Certificate.
43
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and on P&I
Advances in accordance with Section 4.03(d), which rate per annum is equal to
the Prime Rate.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC Accrued Interest": With respect to:
(1) any REMIC I Regular Interest for any Distribution Date, one
month's interest at the REMIC I Remittance Rate applicable to such REMIC I
Regular Interest as of the commencement of the Collection Period for such
Distribution Date, accrued on the REMIC Principal Balance of such REMIC I
Regular Interest outstanding immediately prior to such Distribution Date
and, to the extent permitted under applicable law, also on any REMIC
Distributable Interest in respect of such REMIC I Regular Interest from
prior Distribution Dates that was not previously deemed paid;
(2) any REMIC II Regular Interest for any Distribution Date, one
month's interest at the REMIC II Remittance Rate applicable to such REMIC
II Regular Interest as of the commencement of the Collection Period for
such Distribution Date, accrued on the REMIC Principal Balance of such
REMIC II Regular Interest outstanding immediately prior to such
Distribution Date and, to the extent permitted under applicable law, also
on any REMIC Distributable Interest in respect of such REMIC II Regular
Interest from prior Distribution Dates that was not previously deemed
paid;
(3) any REMIC III P&I Regular Interest for any Distribution Date,
one month's interest at the REMIC III Remittance Rate applicable to such
REMIC III P&I Regular Interest as of the commencement of the Collection
Period for such Distribution Date, accrued on the REMIC Principal Balance
of such REMIC III P&I Regular Interest outstanding immediately prior to
such Distribution Date and, to the extent permitted under applicable law,
also on any REMIC Distributable Interest in respect of such REMIC III P&I
Regular Interest from prior Distribution Dates that was not previously
deemed paid; and
(4) any REMIC III Component for any Distribution Date, one month's
interest at the REMIC III Remittance Rate applicable to such REMIC III
Component as of the commencement of the Collection Period for such
Distribution Date, accrued on the REMIC III Component Notional Amount of
such REMIC III Component outstanding immediately prior to such
Distribution Date and, to the extent permitted under applicable law, also
on any REMIC Distributable Interest in respect of such REMIC III Component
from prior Distribution Dates that was not previously deemed paid.
44
"REMIC Administrator": The Trustee or any REMIC administrator
appointed pursuant to Section 8.14.
"REMIC Distributable Interest": With respect to:
(1) any REMIC I Regular Interest for any Distribution Date, the
REMIC Accrued Interest in respect of such REMIC I Regular Interest for
such Distribution Date, reduced (to not less than zero) by the product of
(i) any Net Aggregate Prepayment Interest Shortfall for such Distribution
Date, multiplied by (ii) a fraction, the numerator of which is the REMIC
Accrued Interest in respect of such REMIC I Regular Interest for such
Distribution Date, and the denominator of which is the aggregate REMIC
Accrued Interest in respect of all the REMIC I Regular Interests for such
Distribution Date;
(2) any REMIC II Regular Interest for any Distribution Date, the
REMIC Accrued Interest in respect of such REMIC II Regular Interest for
such Distribution Date, reduced (to not less than zero) by the product of
(i) any Net Aggregate Prepayment Interest Shortfall for such Distribution
Date, multiplied by (ii) a fraction, expressed as a percentage, the
numerator of which is the REMIC Accrued Interest in respect of such REMIC
II Regular Interest for such Distribution Date, and the denominator of
which is the aggregate REMIC Accrued Interest in respect of all the REMIC
II Regular Interests for such Distribution Date;
(3) any REMIC III P&I Regular Interest for any Distribution Date,
the REMIC Accrued Interest in respect of such REMIC III P&I Regular
Interest for such Distribution Date, reduced (to not less than zero) by
the product of (i) any Net Aggregate Prepayment Interest Shortfall for
such Distribution Date, multiplied by (ii) a fraction, the numerator of
which is the REMIC Accrued Interest in respect of such REMIC III P&I
Regular Interest for such Distribution Date, and the denominator of which
is the aggregate REMIC Accrued Interest in respect of all the REMIC III
P&I Regular Interests for such Distribution Date; and
(4) any REMIC III Component for any Distribution Date, the REMIC
Accrued Interest in respect of such REMIC III Component for such
Distribution Date, reduced (to not less than zero) by the product of (i)
any Net Aggregate Prepayment Interest Shortfall for such Distribution
Date, multiplied by (ii) a fraction, the numerator of which is the REMIC
Accrued Interest in respect of such REMIC III Component for such
Distribution Date, and the denominator of which is the aggregate REMIC
Accrued Interest in respect of all the REMIC III Components for such
Distribution Date.
"REMIC Principal Balance": The principal amount of any REMIC I
Regular Interest, REMIC II Regular Interest or REMIC III P&I Regular Interest
outstanding as of any date of determination. As of the Closing Date, the REMIC
Principal Balance of (1) each REMIC I
45
Regular Interest shall equal the Cut-off Date Balance of the related Mortgage
Loan, (2) each REMIC II Regular Interest shall equal the amount set forth with
respect thereto in the Preliminary Statement, and (3) each REMIC III P&I Regular
Interest shall equal the REMIC Principal Balance of the Corresponding REMIC II
Regular Interest as set forth in the Preliminary Statement hereto. On each
Distribution Date, the REMIC Principal Balance of each REMIC II Regular Interest
shall be permanently reduced by all distributions of principal deemed to have
been made thereon on such Distribution Date pursuant to Section 4.01(h), and
shall be further permanently reduced on such Distribution Date by all Realized
Losses and Additional Trust Fund Expenses deemed to have been allocated thereto
on such Distribution Date pursuant to Section 4.04(b). On each Distribution
Date, the REMIC Principal Balance of each REMIC I Regular Interest shall be
permanently reduced by all distributions of principal deemed to have been made
in respect of such REMIC I Regular Interest on such Distribution Date pursuant
to Section 4.01(i), and shall be further permanently reduced on such
Distribution Date by all Realized Losses and Additional Trust Fund Expenses
deemed to have been allocated thereto on such Distribution Date pursuant to
Section 4.04(c). On each Distribution Date, the REMIC Principal Balance of each
REMIC III P&I Regular Interest shall be permanently reduced by all distributions
of principal deemed to have been made thereon on such Distribution Date pursuant
to Section 4.01(h), and shall be further permanently reduced on such
Distribution Date by all Realized Losses and Additional Trust Fund Expenses
deemed to have been allocated thereto on such Distribution Date pursuant to
Section 4.04(b).
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and proposed, temporary and final Treasury regulations and any
published rulings, notices and announcements promulgated thereunder, as the
foregoing may be in effect from time to time.
"REMIC I": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be administered hereunder
with respect to which a separate REMIC election is to be made and, consisting
of: (i) the Mortgage Loans as from time to time are subject to this Agreement
and all payments under and proceeds of such Mortgage Loans received after the
Closing Date (excluding (a) all Additional Interest, and (b) any interest (other
than Penalty Interest) or principal payable on the Mortgage Loans which is
attributable to any portion of a Servicing Fee, Workout Fee or Principal
Recovery Fee that is deemed to be in excess of the amount of such Servicing Fee,
Workout Fee or Principal Recovery Fee that constitutes reasonable servicing
compensation within the meaning
46
of the REMIC Provisions), together with all documents included in the related
Mortgage Files and any Escrow Payments and Reserve Funds; (ii) any REO Property
acquired in respect of a Mortgage Loan; (iii) such funds or assets (other than
Additional Interest) representing any interest (other than Penalty Interest) or
principal payable on the Mortgage Loans which is attributable to any portion of
a Servicing Fee, Workout Fee or Principal Recovery Fee that is deemed to be in
excess of the amount of such Servicing Fee, Workout Fee or Principal Recovery
Fee that constitutes reasonable servicing compensation within the meaning of the
REMIC Provisions) as from time to time are deposited in the Certificate Account,
the Distribution Account, the Interest Reserve Account and, if established, the
REO Account; and (iv) the rights of the Depositor under Sections 2, 3, 9, 10,
12, 13, 14, 15, 16 and 17 of each of the Mortgage Loan Purchase Agreements and
(v) the rights of the mortgagee under all Insurance Policies with respect to the
Mortgage Loans.
"REMIC I Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I, as described in the Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest for any Distribution Date, either: (1) if, in accordance with its terms
in effect on the Closing Date, the related Mortgage Loan accrues interest on a
30/360 Basis, the Net Mortgage Rate in effect for the related Mortgage Loan as
of the Closing Date; or (2) if, in accordance with its terms in effect on the
Closing Date, the related Mortgage Loan accrues interest on an Actual/360 Basis
(or any other interest accrual basis besides a 30/360 Basis), a rate per annum
equal to (a) a fraction (expressed as a percentage and rounded to the sixth
decimal place), the numerator of which is the product of 12 times the aggregate
amount of interest that would accrue during the calendar month preceding the
month in which such Distribution Date occurs on the Uncertificated Principal
Balance of such REMIC I Regular Interest outstanding immediately prior to such
Distribution Date if such interest were calculated (A) at the Mortgage Rate in
effect for the related Mortgage Loan as of the Closing Date and (B) on an
Actual/360 Basis (or on such other basis, besides a 30/360 Basis, that was
applicable to the accrual of interest on the related Mortgage Loan as of the
Closing Date), and the denominator of which is the Uncertificated Principal
Balance of such REMIC I Regular Interest immediately prior to such Distribution
Date, minus (b) the sum of (i) the Master Servicing Fee Rate for the related
Mortgage Loan (ii) the Trustee Fee Rate and (iii) if applicable, the rate at
which the Swap Fee accrues; provided that, in the case of an Interest Reserve
Loan, the amount of the numerator for the fraction described in clause (2)(a)
above shall (x) for the Distribution Date that occurs during February of each
year or during January of each year that is not a leap year, be reduced by the
related Interest Reserve Amount that is to be transferred from the Certificate
Account to the Interest Reserve Account on such Distribution Date and (y) for
the Distribution Date that occurs during March of each year, be equal to thirty
days' interest at the related Mortgage Rate in effect as of the Closing Date;
provided further that, if the Mortgage Rate of the related Mortgage Loan has
been modified in connection with a bankruptcy or similar proceeding involving
the related Mortgagor or a modification, waiver or amendment granted or agreed
to by the Special Servicer pursuant to Section 3.20, the REMIC I Remittance Rate
for such Mortgage Loan shall be calculated without regard to such event.
"REMIC II": The segregated pool of assets consisting of all of the
REMIC I Regular Interests conveyed in trust to the Trustee for the benefit of
REMIC III, as holder of the REMIC II Regular Interests, and the Holders of the
Class R-II Certificates pursuant to Section 2.06, with respect to which a
separate REMIC election is to be made.
47
"REMIC II Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
"regular interest" in REMIC II. Each REMIC II Regular Interest shall accrue
interest at the REMIC II Remittance Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto. The designations for
the respective REMIC II Regular Interests are set forth in the Preliminary
Statement hereto.
"REMIC II Remittance Rate": With respect to each REMIC II Regular
Interest for any Distribution Date, the Weighted Average REMIC I Remittance Rate
for such Distribution Date.
"REMIC III": The segregated pool of assets consisting of all of the
REMIC II Regular Interests conveyed in trust to the Trustee pursuant to Section
2.08 for the benefit of the Holders of the REMIC III Certificates pursuant to
Section 2.08, with respect to which a separate REMIC election is to be made.
"REMIC III Certificate": Any Class A-1, Class A-2, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class IO, Class J, Class K, Class
L, Class M, Class N or Class R-III Certificate.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "Orix Real
Estate Capital Markets, LLC, as Special Servicer, in trust for registered
holders of First Union National Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 1999-C4."
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09.
"REO Disposition": The sale or other disposition of any REO Property
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan deemed for purposes hereof to be
outstanding with respect to each REO Property, provided that under no
circumstances shall the Split Note constitute an REO Loan. Each REO Loan shall
be deemed to be outstanding for so long as the
48
related REO Property remains part of REMIC I and deemed to provide for Periodic
Payments of principal and/or interest equal to its Assumed Scheduled Payment and
otherwise to have the same terms and conditions as its predecessor Mortgage Loan
(such terms and conditions to be applied without regard to the default on such
predecessor Mortgage Loan and the acquisition of the related REO Property as
part of the Trust Fund). Each REO Loan shall be deemed to have an initial unpaid
principal balance and Stated Principal Balance equal to the unpaid principal
balance and Stated Principal Balance, respectively, of its predecessor Mortgage
Loan as of the date of the related REO Acquisition. All Scheduled Payments
(other than a Balloon Payment), Assumed Scheduled Payments (in the case of a
Balloon Mortgage Loan delinquent in respect of its Balloon Payment) and other
amounts due and owing, or deemed to be due and owing, in respect of the
predecessor Mortgage Loan as of the date of the related REO Acquisition, shall
be deemed to continue to be due and owing in respect of an REO Loan. Collections
in respect of each REO Loan (after provision for amounts to be applied to the
payment of, or to be reimbursed to the Master Servicer, the Special Servicer, or
the Trustee for the payment of, the costs of operating, managing, selling,
leasing and maintaining the related REO Property or for the reimbursement of the
Master Servicer, the Special Servicer, or the Trustee for other related
Servicing Advances) shall be treated: first, as a recovery of accrued and unpaid
interest on such REO Loan at the related Mortgage Rate to but not including the
Due Date in the Collection Period of receipt (exclusive of any portion thereof
that constitutes Additional Interest); second, as a recovery of principal of
such REO Loan to the extent of its entire unpaid principal balance; and third,
in accordance with the normal servicing practices of the Master Servicer, as a
recovery of any other amounts due and owing in respect of such REO Loan,
including, without limitation, (i) Yield Maintenance Charges, Prepayment
Premiums and Penalty Interest and (ii) Additional Interest and other amounts, in
that order. Notwithstanding the foregoing, all amounts payable or reimbursable
to the Master Servicer, the Special Servicer or the Trustee in respect of the
predecessor Mortgage Loan as of the date of the related REO Acquisition,
including, without limitation, any unpaid Servicing Fees and any unreimbursed
Servicing Advances and P&I Advances, together with any interest accrued and
payable to the Master Servicer, the Special Servicer or the Trustee in respect
of such Servicing Advances and P&I Advances in accordance with Sections 3.03(d)
and 4.03(d), shall continue to be payable or reimbursable to the Master
Servicer, the Special Servicer or the Trustee, as the case may be, in respect of
an REO Loan pursuant to Section 3.05(a).
"REO Property": A Mortgaged Property acquired on behalf and in the
name of the Trustee for the benefit of the Certificateholders through
foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived from
the ownership, operation or leasing of any REO Property.
"REO Status Report": A report substantially containing the
information described in Exhibit O attached hereto, and setting forth with
respect to each REO Property that was
49
included in the Trust Fund as of the close of business on the Determination Date
immediately preceding the preparation of such report, among other things, (i)
the acquisition date of such REO Property, (ii) the amount of income collected
with respect to such REO Property (net of related expenses) and other amounts,
if any, received on such REO Property during the related Collection Period and
(iii) the value of the REO Property based on the most recent appraisal or other
valuation thereof available to the Special Servicer as of such Determination
Date (including any prepared internally by the Special Servicer).
"REO Tax": As defined in Section 3.17(a).
"Request for Release": A request signed by a Servicing Officer, as
applicable, of the Master Servicer in the form of Exhibit D-1 attached hereto or
of the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal": With respect to each Required Appraisal
Mortgage Loan, an appraisal of the related Mortgaged Property from an
Independent Appraiser selected by the Special Servicer, prepared in accordance
with 12 CFR ss.225.62 and conducted in accordance with the standards of the
Appraisal Institute.
"Required Appraisal Mortgage Loan": Each Mortgage Loan (i) that is
sixty (60) days or more delinquent in respect of any Periodic Payments, (ii)
that becomes an REO Loan, (iii) that has been modified by the Special Servicer
to reduce the amount of any Periodic Payment (other than a Balloon Payment),
(iv) with respect to which a receiver is appointed and continues in such
capacity in respect of the related Mortgaged Property, (v) with respect to which
a Mortgagor declares bankruptcy or with respect to which the related Mortgagor
is subject to a bankruptcy proceeding or (vi) with respect to which any Balloon
Payment on such Mortgage Loan has not been paid by its scheduled maturity date.
Any Required Appraisal Mortgage Loan shall cease to be such at such time as it
has become a Corrected Mortgage Loan.
"Required Appraisal Value": An amount equal to 90% of the Appraised
Value (net of any prior liens and estimated liquidation expenses) of the
Mortgaged Property related to the subject Required Appraisal Mortgage Loan as
determined by a Required Appraisal; and provided further that for purposes of
determining any Appraisal Reduction Amount in respect of such Required Appraisal
Mortgage Loan, such Appraisal Reduction Amount shall be amended annually to
reflect the Required Appraisal Value determined pursuant to any Required
Appraisal or letter update of a Required Appraisal conducted subsequent to the
original Required Appraisal performed pursuant to Section 3.09(a).
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(f).
50
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Mortgagor to be held in escrow by or on behalf of the
mortgagee representing reserves for environmental remediation, repairs and/or
capital improvements to the related Mortgaged Property.
"Residual Certificate": A Class R-I, Class R-II or Class R-III
Certificate.
"Responsible Officer": When used with respect to (i) the initial
Trustee any officer or assistant officer in the Corporate Trust Services Group
of the initial Trustee and (ii) any successor Trustee, any officer or assistant
officer in the Corporate Trust Department of the Trustee, or any other officer
or assistant officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers to whom a particular
matter is referred by the Trustee because of such officer's knowledge of and
familiarity with the particular subject.
"Restricted Servicer Reports": Each of the Watch List, Operating
Statement Analysis, NOI Adjustment Worksheet and Comparative Financial Status
Report.
"RVI Policy": A non-cancelable residual value insurance policy that
guaranties the Balloon Payment on each Insured Balloon Loan issued by an R.V.I.
Policy Insurer.
"RVI Policy Insurer": Either (i) R.V.I. American Insurance Company
or its successors and assigns or (ii) Financial Structures Limited or its
successors and assigns, with a cut-through endorsement issued by Royal Indemnity
Company or its successors and assigns.
"Scheduled Payment": With respect to any Mortgage Loan, for any Due
Date following the Cut-off Date as of which it is outstanding, the scheduled
Periodic Payment of principal and interest (other than Additional Interest) on
such Mortgage Loan that is or would be, as the case may be, payable by the
related Mortgagor on such Due Date under the terms of the related Mortgage Note
as in effect on the Closing Date, without regard to any subsequent change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20 or acceleration of principal by reason of default, and assuming that each
prior Scheduled Payment has been made in a timely manner.
"Securities Act": The Securities Act of 1933, as amended.
"Semi-Annual Loan Interest Advance Amount": With respect to any
Semi-Annual Mortgage Loan and any Distribution Date occurring in a month in
which there is no Due Date for such Semi-Annual Mortgage Loan, one-sixth of the
Semi-Annual Loan Scheduled Interest Payment
51
that is payable on the immediately succeeding Due Date for such Semi-Annual
Mortgage Loan (net of related Servicing Fees and net of the Swap Fee).
"Semi-Annual Loan Scheduled Interest Payment": With respect to any
SemiAnnual Mortgage Loan, that portion of the scheduled semi-annual payment of
principal and/or interest (other than Additional Interest) on such Semi-Annual
Mortgage Loan that relates to interest and that is payable by the related
Mortgagor under the related Mortgage Note.
"Semi-Annual Loan Swap Agreement": The swap transaction confirmation
dated as of December 1, 1999 between First Union National Bank and First Union
National Bank RC6578 with respect to the payment of scheduled interest under the
Semi-Annual Mortgage Loans or successor agreement.
"Semi-Annual Mortgage Loan": Each Mortgage Loan, the Periodic
Payments of which are due semi-annually pursuant to the terms of the related
Mortgage Note and that is identified as a Semi-Annual Mortgage Loan on the
Mortgage Loan Schedule.
"Senior Certificate": Any Class A-1, Class A-2 or Class IO
Certificate.
"Sequential Pay Certificates": Any of the Regular Certificates other
than the Class IO Certificates.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by or on behalf of the Master Servicer,
Special Servicer or the Trustee in connection with the servicing of a Mortgage
Loan, or in connection with the administration of any REO Property, including,
but not limited to, the cost of (a) compliance with the obligations of the
Master Servicer and the Special Servicer, if any, set forth in Section 3.03(c),
Section 3.02(d) and Section 3.02(e), (b) the preservation, insurance,
restoration, protection and management of a Mortgaged Property, including the
cost of any "forced placed" insurance policy purchased by the Master Servicer to
the extent such cost is allocable to a particular Mortgaged Property that the
Master Servicer or the Special Servicer is required to cause to be insured
pursuant to Section 3.07(a), (c) obtaining any Insurance Proceeds or any
Liquidation Proceeds of the nature described in clauses (i)-(v) of the
definition of "Liquidation Proceeds," (d) any enforcement or judicial
proceedings with respect to a Mortgaged Property, including, without limitation,
foreclosures, (e) any Required Appraisal or other appraisal expressly required
or permitted to be obtained hereunder, (f) the operation, management,
maintenance and liquidation of any REO Property, including, without limitation,
appraisals and compliance with Section 3.16(a) and Section 3.20(h) and (g)
compliance with the obligations of the Master Servicer or the
52
Trustee set forth in Section 2.03(a) or (b). Notwithstanding anything to the
contrary, "Servicing Advances" shall not include allocable overhead of the
Master Servicer or the Special Servicer, such as costs for office space, office
equipment, supplies and related expenses, employee salaries and related expenses
and similar internal costs and expenses or costs and expenses incurred by any
such party in connection with its purchase of a Mortgage Loan or REO Property.
"Servicer Fee Amount": With respect to each Sub-Servicer and any
date of determination, the aggregate of the products obtained by multiplying,
for each Mortgage Loan serviced by such Sub-Servicer, (a) the principal balance
of such Mortgage Loan as of the end of the immediately preceding Collection
Period and (b) the servicing fee rate specified in the related Sub-Servicing
Agreement for such Mortgage Loan. With respect to the Master Servicer and any
date of determination, the aggregate of the products obtained by multiplying,
for each Mortgage Loan, (a) the principal balance of such Mortgage Loan as of
the end of the immediately preceding Collection Period and (b) the difference
between the Master Servicing Fee Rate for such Mortgage Loan over the servicing
fee rate (if any) applicable to such Mortgage Loan as specified in any
Sub-Servicing Agreement related to such Mortgage Loan.
"Servicing Fees": With respect to each Mortgage Loan and REO Loan,
the Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File) relating to the origination and servicing of
any Mortgage Loan, including appraisals, surveys, engineering reports and
environmental reports; provided, however, there shall be no servicing file for
the Split Note other than the limited records kept by the Master Servicer
pursuant to Section 3.26.
"Servicing Officer": Any officer or employee of the Master Servicer
or the Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, whose name and specimen signature appear on a
list of servicing officers furnished by such party to the Trustee and the
Depositor on the Closing Date, as such list may be amended from time to time.
"Servicing Standard": With respect to the Master Servicer or the
Special Servicer, the servicing and administration of the Mortgage Loans for
which it is responsible hereunder (a) in the same manner in which, and with the
same care, skill, prudence and diligence with which, the Master Servicer or the
Special Servicer, as the case may be, generally services and administers similar
mortgage loans with similar borrowers (i) for other third-parties, giving due
consideration to customary and usual standards of practice of prudent
institutional commercial mortgage lenders servicing their own loans or (ii) held
in its own portfolio, whichever standard is higher, (b) with a view to the
maximization of the recovery on such Mortgage Loan on a net present value basis,
and (c) without regard to (i) any relationship that the Master Servicer or the
Special Servicer, as the case may be, or any Affiliate thereof may have with the
related Mortgagor, the Depositor, any
53
Mortgage Loan Seller or any other party to the transaction; (ii) the ownership
of any Certificate by the Master Servicer or the Special Servicer, as the case
may be, or by any Affiliate thereof; (iii) the right of the Master Servicer or
the Special Servicer, as the case may be, to receive compensation or other fees
for its services rendered pursuant to this Agreement; (iv) the obligations of
the Master Servicer to make Advances; (v) the ownership, servicing or management
for others of any other mortgage loans or mortgaged property; and (vi) any
obligation of the Master Servicer or any Affiliate of the Master Servicer to
repurchase or substitute a Mortgage Loan as a Mortgage Loan Seller.
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through (g) of the
definition of "Specially Serviced Mortgage Loan".
"Single Certificate": For purposes of Section 4.02, a hypothetical
Certificate of any Class of Regular Certificates evidencing a $1,000
denomination.
"Special Servicer": Orix Real Estate Capital Markets, LLC, or any
successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, the fee designated as such and payable to the
Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, .25% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which
any of the following events have occurred:
(a) the related Mortgagor shall have failed to make any Periodic
Payment, and such failure has continued unremedied for 60 days
(or, in the case of a Balloon Payment, if the Master Servicer
receives written evidence from an institutional lender of such
lender's binding commitment to refinance such Mortgage Loan
and the related Mortgagor continues to make monthly payments
as required by the Mortgage Loan of principal and interest in
an amount at least equal to the Periodic Payment due on the
Due Date immediately preceding the scheduled maturity date,
such longer period (not to exceed 120 days) within which such
refinancing is expected to occur); or
(b) the Master Servicer shall have determined, in its good faith
reasonable judgment, based on communications with the related
Mortgagor, that a
54
default in making a Periodic Payment is likely to occur within
30 days and is likely to remain unremedied for at least 60
days (or, in the case of a Balloon Payment, if the Master
Servicer has received written evidence from an institutional
lender of such lender's binding commitment to refinance such
Mortgage Loan and if the Master Servicer reasonably expects
the related Mortgagor to continue to make Periodic Payments of
principal and interest in an amount at least equal to the
Periodic Payment due on the Due Date immediately preceding the
scheduled maturity date, such longer period (not to exceed 120
days) within which such refinancing is expected to occur); or
(c) there shall have occurred a default (other than as described
in clause (a) above) that materially impairs the value of the
Mortgaged Property as security for the Mortgage Loan or
otherwise materially adversely affects the interests of
Certificateholders and that continues unremedied for the
applicable grace period under the terms of the Mortgage Loan
(or, if no grace period is specified, for 60 days); or
(d) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an
involuntary case under any present or future federal or state
bankruptcy, insolvency or similar law or the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of
its affairs, shall have been entered against the related
Mortgagor and such decree or order shall have remained in
force undischarged, undismissed or unstayed for a period of 60
days; or
(e) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property; or
(f) the related Mortgagor shall admit in writing its inability to
pay its debts generally as they become due, file a petition to
take advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors,
or voluntarily suspend payment of its obligations; or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with
respect to the related Mortgaged Property;
55
provided, however, that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan:
(w) with respect to the circumstances described in clause (a)
above, when the related Mortgagor has made three consecutive
full and timely Periodic Payments (or in the case of a
Semi-Annual Mortgage Loan, two consecutive full and timely
Periodic Payments) under the terms of such Mortgage Loan (as
such terms may be changed or modified in connection with a
bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, waiver or amendment
granted or agreed to by the Special Servicer pursuant to
Section 3.20);
(x) with respect to the circumstances described in clauses (b),
(d), (e) and (f) above, when such circumstances cease to exist
in the good faith reasonable judgment of the Special Servicer
and in accordance with the Servicing Standard, but, with
respect to any bankruptcy or insolvency proceedings described
in clauses (d), (e) and (f), no later than the entry of an
order or decree dismissing such proceeding;
(y) with respect to the circumstances described in clause (c)
above, when such default is cured; and
(z) with respect to the circumstances described in clause (g)
above, when such proceedings are terminated;
so long as at that time no circumstance identified in clauses (a) through (g)
above exists that would cause the Mortgage Loan to continue to be characterized
as a Specially Serviced Mortgage Loan and provided no additional default is
foreseeable in the reasonable judgment of the Special Servicer. Notwithstanding
the foregoing, under no circumstances shall the Split Note constitute a
Specially Serviced Mortgage Loan.
"Split Note": The Split Note identified as Loan Number 12 on the
Mortgage Loan Schedule as to which the related Co-Lender Agreement designates
the Trustee as the "Co-Lender."
"Split Note Servicing Agreement: With respect to the Split Note, the
agreement dated as of December 1, 1999 among Norwest Bank Minnesota, National
Association, as trustee, First Union National Bank, LaSalle National Bank, as
trustee, and Midland Loan Services, Inc.
"Standard & Poor's": Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc., or its successor in interest. If neither
such rating agency nor any successor remains in existence, "Standard & Poor's"
shall be deemed to refer to such other nationally recognized statistical rating
agency or other comparable Person designated by the
56
Depositor, notice of which designation shall be given in writing to the Trustee,
the Master Servicer and the Special Servicer, and specific ratings of Standard &
Poor's Ratings Services herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Startup Day": With respect to each of REMIC I, REMIC II and REMIC
III, the day designated as such in Section 10.01(c).
"State and Local Taxes": Taxes imposed by the states of New York and
North Carolina and by any other state or local taxing authorities as may, by
notice to the Trustee, assert jurisdiction over the trust fund or any portion
thereof, or which, according to an Opinion of Counsel addressed to the Trustee,
have such jurisdiction.
"Stated Maturity Date": With respect to any Mortgage Loan, the Due
Date specified in the Mortgage Note (as in effect on the Closing Date) on which
the last payment of principal is due and payable under the terms of the Mortgage
Note (as in effect on the Closing Date), without regard to any change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to Section
3.20 and, in the case of an ARD Loan, without regard to its Anticipated
Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan (and
any successor REO Loan), the Cut-off Date Balance of such Mortgage Loan (or, in
the case of a Qualified Substitute Mortgage Loan, the unpaid principal balance
after application of all principal payments due on or before the related date of
substitution, whether or not received), (a) as permanently reduced on each
Distribution Date (to not less than zero) by (i) all payments (or advances in
lieu thereof) and other collections of principal of such Mortgage Loan (or
successor REO Loan) that are distributed (or, to the extent they had not been
applied to cover Additional Trust Fund Expenses, would have been distributed) to
Certificateholders on such Distribution Date, and (ii) the principal portion of
any Realized Loss incurred in respect of such Mortgage Loan (or successor or REO
Loan) during the related Collection Period and (b) increased on each
Distribution Date by any Mortgage Deferred Interest added to the principal
balance of such Mortgage Loan on such Distribution Date. Notwithstanding the
foregoing, if a Liquidation Event occurs in respect of any Mortgage Loan or REO
Property, then the "Stated Principal Balance" of such Mortgage Loan or of the
related REO Loan, as the case may be, shall be zero commencing as of the
Distribution Date in the Collection Period next following the Collection Period
in which such Liquidation Event occurred.
"Subordinated Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class
R-I, Class R-II or Class R-III Certificate.
57
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, on the one hand, and any Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage Loans as
provided in Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(a) hereof, an amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution over the Stated Principal Balance of the related Qualified
Substitute Mortgage Loan as of the date of substitution. In the event that one
or more Qualified Substitute Mortgage Loans are substituted (at the same time)
for one or more deleted Mortgage Loans, the Substitution Shortfall Amount shall
be determined as provided in the preceding sentence on the basis of the
aggregate Purchase Prices of the Mortgage Loan or Mortgage Loans being replaced
and the aggregate Stated Principal Balances of the related Qualified Substitute
Mortgage Loan or Mortgage Loans.
"Swap Fee": The .145% per annum fee payable under the Semi-Annual
Loan Swap Agreement.
"Tax Matters Person": With respect to each of the REMICs created
hereunder, the Person designated as the "tax matters person" of such REMIC in
the manner provided under Treasury Regulations Section 1.860F-4(d) and Temporary
Treasury Regulations Section 301.6231(a)(7)-1T, which Person shall be the
applicable Plurality Residual Certificateholder.
"Tax Returns": The federal income tax return on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of REMIC I, REMIC II and REMIC III due to its
classification as a REMIC under the REMIC Provisions, and the federal income tax
return to be filed on behalf of the Grantor Trust due to its classification as a
grantor trust under the Grantor Trust Provisions, together with any and all
other information, reports or returns that may be required to be furnished to
the Certificateholders or filed with the Internal Revenue Service under any
applicable provisions of federal tax law or any other governmental taxing
authority under applicable State and Local Tax laws.
"Tenant": With respect to each Credit Lease, the lessee thereunder.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
58
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust Fund": Collectively, (i) all of the assets of REMIC I, REMIC
II and REMIC III, (ii) any interest payable on the Mortgage Loans which is
attributable to any portion of a Servicing Fee, Workout Fee or Principal
Recovery Fee that is deemed to be in excess of the amount of such Servicing Fee,
Workout Fee or Principal Recovery Fee that constitutes reasonable servicing
compensation within the meaning of the REMIC Provisions, and (iii) the Grantor
Trust Assets.
"Trustee": Norwest Bank Minnesota, National Association, its
successor in interest, or any successor trustee appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan and REO Loan for
any Distribution Date, an amount equal to one month's interest for the most
recently ended calendar month (calculated on a 30/360 Basis), accrued at the
Trustee Fee Rate on the Stated Principal Balance of such Mortgage Loan or REO
Loan, as the case may be, outstanding immediately following the prior
Distribution Date (or, in the case of the initial Distribution Date, as of the
Closing Date).
"Trustee Fee Rate": .0023% per annum.
"Trustee Liability": As defined in Section 8.05(b).
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in any relevant
jurisdiction.
"Uncertificated Accrued Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the Uncertificated Principal Balance of such REMIC
I Regular Interest outstanding immediately prior to such Distribution Date and,
to the extent permitted under applicable law, also on any Uncertificated Accrued
Interest in respect of such REMIC I Regular Interest from prior Distribution
Dates that was not previously deemed paid. With respect to any REMIC II Regular
Interest, for any Distribution Date, one month's interest at the REMIC II
Remittance Rate, accrued on the Uncertificated Principal Balance of such REMIC
II Regular Interest outstanding immediately prior to such Distribution Date.
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Uncertificated Accrued Interest in respect of any REMIC I Regular Interest or
any REMIC II Regular Interest shall accrue on a 30/360 Basis and, with respect
to any REMIC I Regular Interest or REMIC II Regular Interest for any
Distribution Date, shall be deemed to accrue during the calendar month preceding
the month in which such Distribution Date occurs.
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest for any Distribution Date, the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, reduced
(to not less than zero) by the product of (i) any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date, multiplied by (ii) a fraction,
the numerator of which is the Uncertificated Accrued Interest in respect of such
REMIC I Regular Interest for such Distribution Date, and the denominator of
which is the aggregate Uncertificated Accrued Interest in respect of all the
REMIC I Regular Interests for such Distribution Date. With respect to any REMIC
II Regular Interest for any Distribution Date, the Uncertificated Accrued
Interest in respect of such REMIC II Regular Interest for such Distribution
Date, reduced (to not less than zero) by the product of (i) any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date, multiplied by (ii) a
fraction, expressed as a percentage, the numerator of which is the
Uncertificated Accrued Interest in respect of such REMIC II Regular Interest for
such Distribution Date, and the denominator of which is the aggregate
Uncertificated Accrued Interest in respect of all the REMIC II Regular Interests
for such Distribution Date.
"Uncertificated Principal Balance": The principal amount of any
REMIC I Regular Interest or REMIC II Regular Interest outstanding as of any date
of determination. As of the Closing Date, the Uncertificated Principal Balance
of each REMIC I Regular Interest shall equal the Cut-off Date Balance of the
related Mortgage Loan, and the Uncertificated Principal Balance of each REMIC II
Regular Interest shall equal the Original Class Principal Balance of the
corresponding Class of Sequential Pay Certificates as set forth in the
Preliminary Statement hereto. On each Distribution Date, the Uncertificated
Principal Balance of each REMIC II Regular Interest shall be permanently reduced
by all distributions of principal deemed to have been made thereon on such
Distribution Date pursuant to Section 4.01(h), and shall be further permanently
reduced on such Distribution Date by all Realized Losses and Additional Trust
Fund Expenses deemed to have been allocated thereto on such Distribution Date
pursuant to Section 4.04(b). On each Distribution Date, the Uncertificated
Principal Balance of each REMIC I Regular Interest shall be permanently reduced
by all distributions of principal deemed to have been made in respect of such
REMIC I Regular Interest on such Distribution Date pursuant to Section 4.01(i),
and shall be further permanently reduced on such Distribution Date by all
Realized Losses and Additional Trust Fund Expenses deemed to have been allocated
thereto on such Distribution Date pursuant to Section 4.04(c).
"Underwriter": Each of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, First Union Securities or, in each case, its successor in
interest.
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"United States Person": A citizen or resident of the United States,
a corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of the United States, any State thereof or the District of Columbia
unless in the case of a partnership, Treasury Regulations are adopted that
provide otherwise, or an estate whose income is includable in gross income for
United States federal income tax purposes regardless of its source, or a trust
if a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States Persons have the
authority to control all substantial decisions of the trust, all within the
meaning of Section 7701(a) (30) of the Code.
"Unrestricted Servicer Reports": Each of the Delinquent Loan Status
Report, Historical Loan Modification Report, Historical Liquidation Report and
REO Status Report.
"USAP": The Uniform Single Attestation Program for Mortgage Bankers.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, 100% of the Voting Rights shall be allocated among the
Holders of the Regular Certificates. 96% of the Voting Rights shall be allocated
among the Class X-0, Xxxxx X-0, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M and Class N Certificates in
proportion to the respective Class Principal Balances of their Certificates. 4%
of the Voting Rights shall be allocated to the Class IO Certificates. Voting
Rights allocated to a Class of Certificateholders shall be allocated among such
Certificateholders in standard proportion to the Percentage Interests evidenced
by their respective Certificates. In addition, if either the Master Servicer or
the Special Servicer is the holder of any Certificate, neither of the Master
Servicer or Special Servicer, in its capacity as a Certificateholder, shall have
Voting Rights with respect to matters concerning compensation affecting the
Master Servicer or the Special Servicer.
"Watch List": As of each Determination Date a report, substantially
in the form of Exhibit P attached hereto, identifying each Mortgage Loan that is
not a Specially Serviced Mortgage Loan (i) with a Debt Service Coverage Ratio of
less than 1.05x (other than with respect to Credit Lease Loans), (ii) that has a
Stated Maturity Date occurring in the next sixty days, (iii) that is delinquent
in respect of its real estate taxes, (iv) for which any outstanding Advances
exist, (v) that has been a Specially Serviced Mortgage Loan in the past 90 days,
(vi) for which the Debt Service Coverage Ratio has decreased by more than 10% in
the prior 12 months, (vii) for which any lease relating to more than 25% of the
related Mortgaged Property has expired, been terminated, is in default or will
expire within the next three months, (viii) that is late in making its Periodic
Payment three or more times in the preceding twelve months, (ix) with material
deferred maintenance at the related Mortgaged Property or (x) that is 30 or more
days delinquent.
"Weighted Average REMIC I Remittance Rate": With respect to any
Distribution Date, the rate per annum equal to the weighted average, expressed
as a percentage and rounded
61
to six decimal places, of the respective REMIC I Remittance Rates applicable to
the REMIC I Regular Interests for such Distribution Date, weighted on the basis
of the respective Uncertificated Principal Balances of such REMIC I Regular
Interests outstanding immediately prior to such Distribution Date.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to the second
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan,
1.00%.
"Yield Maintenance Charge": Payments paid or payable, as the context
requires, on a Mortgage Loan as the result of a Principal Prepayment thereon,
not otherwise due thereon in respect of principal or interest, which have been
calculated (based on Scheduled Payments on such Mortgage Loan) to compensate the
holder for reinvestment losses based on the value of an interest rate index at
or near the time of prepayment. Any other prepayment premiums, penalties and
fees not so calculated will not be considered "Yield Maintenance Charges." In
the event that a Yield Maintenance Charge shall become due for any particular
Mortgage Loan, the Master Servicer shall be required to follow the terms and
provisions contained in the applicable Mortgage Note, provided, however, in the
event the particular Mortgage Note shall not specify the U.S. Treasuries which
shall be used in determining the discount rate or the reinvestment yield to be
applied in such calculation, the Master Servicer shall be required to use those
U.S. Treasuries having maturity dates most closely approximating the maturity of
such Mortgage Loan. Accordingly if either no U.S. Treasury issue, or more than
one U.S. Treasury issue, shall coincide with the term over which the Yield
Maintenance Charge shall be calculated (which depending on the applicable
Mortgage Note is based on the remaining average life of the Mortgage Loan or the
actual term remaining through the Maturity Date), the Master Servicer shall use
the U.S. Treasury whose reinvestment yield is the lowest, with such yield being
based on the bid price for such issue as published in the WALL STREET JOURNAL on
the date that is fourteen (14) days prior to the date that the Yield Maintenance
Charge shall become due and payable (or, if such bid price is not published on
that date, the next preceding date on which such bid price is so published) and
converted to a monthly compounded nominal yield. The monthly compounded nominal
yield ("MEY") is derived from the reinvestment yield or discount rate and shall
be defined as MEY = (12X[{(1+"BEY"/2)^1/6}-1]) where BEY is defined as the U.S.
Treasury Reinvestment Yield which is in decimal form and not in percentage, and
1/6 is the exponential power to which a portion of the equation is raised. For
example, using a BEY of 5.50%, the MEY = (12 X [{(1+.055/2)^1/6}-1]) where .055
is the decimal version of the percentage 5.5% and 0.16667 is the decimal version
of the exponential power. The MEY in the above calculation is 5.44%.
62
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby assign, sell, transfer, set over and otherwise convey to the
Trustee, in trust, without recourse, for the benefit of the Certificateholders
(and for the benefit of the other parties to this Agreement as their respective
interests may appear) all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans, (ii) the rights of the Depositor under
Sections 2, 3, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of each of the Mortgage Loan
Purchase Agreements and (iii) all other assets included or to be included in the
Trust Fund. Such assignment includes all interest and principal received or
receivable on or with respect to the Mortgage Loans and due after the Cut-off
Date (and in the case of Semi-Annual Mortgage Loans, excluding interest accrued
thereon before the Cut-off Date). The transfer of the Mortgage Loans and the
related rights and property accomplished hereby is absolute and, notwithstanding
Section 11.07, is intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, the Mortgage Loan Sellers, in each case, pursuant
to the applicable Mortgage Loan Purchase Agreement, to deliver to and deposit
with, or cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby (with a copy to the Master Servicer and Special Servicer), on
or before the Closing Date, the Mortgage File for each Mortgage Loan so
assigned. The Special Servicer may request the Master Servicer to deliver a copy
of the Servicing File for any Mortgage Loan (other than a Specially Serviced
Mortgage Loan) at the expense of the Special Servicer, unless such request
relates to a Specially Serviced Mortgage Loan, in which case it shall be at the
expense of the Trust Fund. None of the Trustee, any Custodian, the Master
Servicer or the Special Servicer shall be liable for any failure by any Mortgage
Loan Seller or the Depositor to comply with the document delivery requirements
of the respective Mortgage Loan Purchase Agreement and this Section 2.01 (b).
(c) If the Mortgage Loan Seller cannot deliver, or cause to be
delivered, on the Closing Date, as to any Mortgage Loan, any of the documents
and/or instruments referred to in clauses (ii), (iii), (vi) (if recorded) and
(viii) of the definition of "Mortgage File", with evidence of recording thereon,
solely because of a delay caused by the public recording office where such
document or instrument has been delivered for recordation, the delivery
requirements of the Mortgage Loan Purchase Agreement and Section 2.01(b) shall
be deemed to have been satisfied as to such non-delivered document or
instrument, and such non-delivered document or instrument shall be deemed to
have been included in the Mortgage File, provided that a photocopy of such
63
non-delivered document or instrument (certified by the Mortgage Loan Seller
to be a true and complete copy of the original thereof submitted for recording)
is delivered to the Trustee or a Custodian appointed thereby on or before the
Closing Date, and either the original of such non-delivered document or
instrument, or a photocopy thereof, with evidence of recording thereon, is
delivered to the Trustee or such Custodian within 120 days of the Closing Date
(or within such longer period after the Closing Date as the Trustee may consent
to, which consent shall not be unreasonably withheld so long as the Mortgage
Loan Seller is, in good faith, attempting to obtain from the appropriate county
recorder's office such original or photocopy). If the Mortgage Loan Seller
cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of the
documents and/or instruments referred to in clauses (ii), (iii), (vi) (if
recorded) and (viii) of the definition of "Mortgage File," with evidence of
recording thereon, for any other reason, including, without limitation, that
such non-delivered document or instrument has been lost, the delivery
requirements of the Mortgage Loan Purchase Agreement and Section 2.01(b) shall
be deemed to have been satisfied as to such non-delivered document or
instrument, and such non-delivered document or instrument shall be deemed to
have been included in the Mortgage File, provided that a photocopy of such
non-delivered document or instrument (with evidence of recording thereon) is
delivered to the Trustee or a Custodian appointed thereby on or before the
Closing Date.
If, on the Closing Date as to any Mortgage Loan, the Mortgage Loan
Seller does not deliver in complete and recordable form any one of the
assignments in favor of the Trustee referred to in clause (iv) or (v) of the
definition of "Mortgage File", the Mortgage Loan Seller may provisionally
satisfy the delivery requirements of the related Mortgage Loan Purchase
Agreement and Section 2.01(b) by delivering with respect to such Mortgage Loan
on the Closing Date an omnibus assignment of such Mortgage Loan; provided that
all required original assignments with respect to such Mortgage Loan in fully
complete and recordable form shall be delivered to the Trustee or its Custodian
within 120 days of the Closing Date (or within such longer period as the Trustee
in its discretion may permit).
(d) The Trustee shall, at the Depositor's expense, as to each
Mortgage Loan, promptly (and in any event within 75 days following the later of
the Closing Date or the delivery of all assignments and UCC Financing Statements
to the Trustee) cause to be submitted for recording or filing, as the case may
be, in the appropriate public office for real property records or UCC Financing
Statements, as appropriate and to the extent timely delivered to the Trustee in
final, recordable form, each assignment of Mortgage, assignment of Assignment of
Leases and any other recordable documents (to the extent the Trustee has actual
knowledge that such documents are to be recorded and provided further that the
foregoing provisions regarding the assignment of Mortgage and Assignment of
Leases shall not apply to the Split Note) relating to the Mortgage Loan, in
favor of the Trustee referred to in clause (iv) of the definition of "Mortgage
File" and each UCC-2 and UCC-3
64
assignment in favor of the Trustee and so delivered to the Trustee and referred
to in clause (viii) of the definition of "Mortgage File." Each such assignment,
UCC-2 and UCC-3 shall reflect that the recorded original should be returned by
the public recording office to the Trustee or its designee following recording,
and each such UCC-2 and UCC-3 assignment shall reflect that the file copy
thereof should be returned to the Custodian or its designee following filing;
provided, that in those instances where the public recording office retains the
original assignment of Mortgage or assignment of Assignment of Leases, the
Trustee shall obtain therefrom a certified copy of the recorded original, at the
expense of the Depositor. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Trustee shall direct the appropriate Mortgage Loan Seller pursuant to the
applicable Mortgage Loan Purchase Agreement promptly to prepare or cause to be
prepared a substitute therefor or cure such defect, as the case may be, and
thereafter the Trustee shall upon receipt thereof cause the same to be duly
recorded or filed, as appropriate.
(e) All documents and records in the Servicing File in possession of
the Depositor or the Mortgage Loan Sellers that relate to the Mortgage Loans and
that are not required to be a part of a Mortgage File in accordance with the
definition thereof (including any original letters of credit), together with all
Escrow Payments and Reserve Accounts in the possession thereof, shall be
delivered to the Master Servicer or such other Person as may be directed by the
Master Servicer (at the expense of the applicable Mortgage Loan Seller) on or
before the Closing Date and shall be held by the Master Servicer on behalf of
the Trustee in trust for the benefit of the Certificateholders; provided,
however, the Master Servicer shall have no responsibility for holding documents
created or maintained by the Special Servicer hereunder and not delivered to the
Master Servicer.
(f) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall deliver to the Custodian and the
Master Servicer on or before the Closing Date and hereby represents and warrants
that it has delivered a copy of a fully executed counterpart of each Mortgage
Loan Purchase Agreement, as in full force and effect on the Closing Date.
SECTION 2.02. Acceptance of the Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
acknowledges receipt of the Depositor's assignment to it of the Depositor's
right, title and interest in the assets that constitute the Trust Fund, and
further acknowledges receipt by it or a Custodian on its behalf, subject to the
provisos in the definition of "Mortgage File" and the provisions of Section 2.01
and subject to the further limitations on review provided for in Section 2.02(b)
and the exceptions noted on the schedule of exceptions of (i) the Mortgage File
delivered to it for each Mortgage Loan and (ii) a copy of a fully executed
counterpart of each Mortgage Loan Purchase Agreement, all in good faith and
without notice of any adverse claim, and declares that it or a Custodian on its
behalf holds and will hold such documents and the other documents received by it
that constitute portions of the Mortgage Files, and that it holds and will hold
the Mortgage Loans and other assets included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders. The
Custodian hereby certifies to each of the Depositor, the Master Servicer, the
Special Servicer, the Trustee and the Mortgage Loan Sellers, that except as
identified
65
in the schedule of exceptions, which is attached hereto as Exhibit C-1 without
regard to the proviso in the definition of "Mortgage File", each of the original
executed Mortgage Notes are in its possession. In addition, within ninety (90)
days after the Closing (and if any exceptions are noted, again on or about the
180th day following the Closing Date and, if any exceptions are noted, again on
or about the first anniversary of the Closing Date), the Trustee or the
Custodian on its behalf will review the Mortgage Files and certify (in a
certificate substantially in the form of Exhibit C-2) to each of the Depositor,
the Master Servicer, the Special Servicer and the Mortgage Loan Sellers that,
with respect to each Mortgage Loan listed in the Mortgage Loan Schedule, except
as specifically identified in the schedule of exceptions annexed thereto, (i)
without regard to the proviso in the definition of "Mortgage File," (other than
the proviso concerning the Split Note) all documents specified in clauses (i),
(ii), (iv)(a), (v) and (vii), and to the extent provided in the related Mortgage
File and actually known by a Responsible Officer of the Trustee to be required,
clauses (iii), (iv)(b), (iv)(c), (vi), (viii) and (ix) of the definition of
"Mortgage File" are in its possession, (ii) all documents delivered or caused to
be delivered by the applicable Mortgage Loan Seller constituting the related
Mortgage File have been reviewed by it and appear regular on their face and
appear to relate to such Mortgage Loan, and (iii) based on such examination and
only as to the foregoing documents, the information set forth in the Mortgage
Loan Schedule for such Mortgage Loan with respect to the items specified in
clauses (v) and (vi)(c) of the definition of "Mortgage Loan Schedule" is
correct.
(b) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation to inspect, review or examine
any of the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, enforceable, in recordable form, sufficient or appropriate
for the represented purpose or that they are other than what they purport to be
on their face.
SECTION 2.03. Mortgage Loan Seller's Repurchase or Substitution
of Mortgage Loans for Document Defects and Breaches of
Representations and Warranties.
(a) If any party hereto discovers or receives notice that any
document or documents constituting a part of a Mortgage File has not been
properly executed, is missing, contains information that does not conform in any
material respect with the corresponding information set forth in the Mortgage
Loan Schedule, or does not appear to be regular on its face (each, a "Document
Defect"), or discovers or receives notice of a breach of any representation or
warranty relating to any Mortgage Loan set forth in the applicable Mortgage Loan
Purchase Agreement (a "Breach"), and that in either case materially and
adversely affects the interests of the Certificateholders or the value of the
affected Mortgage Loans, the party discovering such Document Defect or Breach
shall give written notice to the other parties hereto, to the Majority
Subordinate Certificateholder and to the Rating Agencies of such Document Defect
or Breach. The Trustee shall in turn notify the Controlling Class Representative
(if different from the Majority
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Subordinate Certificateholder and to the extent known to the Trustee) of such
Document Defect or Breach. Promptly upon becoming aware of any such Document
Defect or Breach (including through such written notice provided by any party
hereto or the Majority Subordinate Certificateholder as provided above), the
Master Servicer shall request in writing that the related Mortgage Loan Seller,
not later than ninety (90) days from receipt of such written request (or, in the
case of a Document Defect or Breach relating to a Mortgage Loan not being a
"qualified mortgage" within the meaning of the REMIC Provisions, not later than
ninety (90) days after any party to this Agreement discovering such Document
Defect or Breach) (i) cure such Document Defect or Breach, as the case may be,
in accordance with Section 3(c) of the Mortgage Loan Purchase Agreement, (ii)
repurchase the affected Mortgage Loan in accordance with Section 3(c) of the
Mortgage Loan Purchase Agreement or (iii) substitute a Qualified Substitute
Mortgage Loan for such affected Mortgage Loan and pay the Master Servicer for
deposit into the Certificate Account any Substitution Shortfall Amount in
connection therewith in accordance with Sections 3(c) and 3(d) of the Mortgage
Loan Purchase Agreement; provided, however, that if such Document Defect or
Breach is capable of being cured but not within such ninety (90) day period,
such Document Defect or Breach does not relate to the Mortgage Loan not being
treated as a "qualified mortgage" within the meaning of the REMIC Provisions,
and the Mortgage Loan Seller has commenced and is diligently proceeding with the
cure of such Document Defect or Breach within such ninety (90) day period, such
Mortgage Loan Seller shall have an additional ninety (90) days to complete such
cure (or, failing such cure, to repurchase the related Mortgage Loan); and
provided, further, with respect to such additional ninety (90) day period the
Mortgage Loan Seller shall have delivered an Officer's Certificate to the
Trustee setting forth the reasons such Document Defect or Breach is not capable
of being cured within the initial ninety (90) day period and what actions the
Mortgage Loan Seller is pursuing in connection with the cure thereof and stating
that the Mortgage Loan Seller anticipates such Document Defect or Breach will be
cured within the additional ninety (90) day period. For a period of two years
from the Closing Date, so long as there remains any Mortgage File as to which
there is any uncured Document Defect and so long as the related Mortgage Loan
Seller shall provide the Officer's Certificate pursuant to Section 3(c) of the
related Mortgage Loan Purchase Agreement, the Trustee shall on a quarterly basis
prepare and deliver to the other parties a written report as to the status of
such uncured Document Defects. If the affected Mortgage Loan is to be
repurchased or substituted, the Master Servicer shall designate the Certificate
Account as the account to which funds in the amount of the Purchase Price or the
Substitution Shortfall Amount, as applicable, are to be wired. Any such
repurchase or substitution of a Mortgage Loan shall be on a whole loan,
servicing released basis.
(b) In connection with any repurchase or substitution of one or more
Mortgage Loans contemplated by this Section 2.03, upon receipt of a Request for
Release of a Servicing Officer of the Master Servicer certifying as to the
receipt of the applicable Purchase Price(s) in the Certificate Account (in the
case of any such repurchase) or the receipt of the applicable Substitution
Shortfall Amount(s) in the Certificate Account and upon the delivery of the
Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute
Mortgage Loan(s) to the Custodian and the Master Servicer, respectively (in the
case of any such substitution), (i) the
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Trustee shall execute and deliver such endorsements and assignments as are
provided to it, in each case without recourse, representation or warranty, as
shall be necessary to vest in the appropriate Mortgage Loan Seller the legal and
beneficial ownership of each repurchased Mortgage Loan or deleted Mortgage Loan,
as applicable, being released pursuant to this Section 2.03, and (ii) the
Trustee, the Custodian, the Master Servicer, and the Special Servicer shall each
tender to the appropriate Mortgage Loan Seller, upon delivery to each of them of
a receipt executed by such Mortgage Loan Seller, all portions of the Mortgage
File and other documents pertaining to each such Mortgage Loan possessed by it
and the Master Servicer and the Special Servicer shall release to the
appropriate Mortgage Loan Seller any Escrow Payments and Reserve Funds held by
it in respect of such repurchased Mortgage Loan; provided, that such tender by
the Trustee or the Custodian shall be conditioned upon its receipt from the
Master Servicer or the Special Servicer of a Request for Release. Thereafter,
the Trustee, the Custodian, the Master Servicer and the Special Servicer shall
have no further responsibility with regard to the related repurchased Mortgage
Loan(s) or deleted Mortgage Loan(s), as applicable, and the related Mortgage
File(s) and Servicing File(s). The Master Servicer shall, and is hereby
authorized and empowered by the Trustee to, prepare, execute and deliver in its
own name, on behalf of the Certificateholders and the Trustee or any of them,
the endorsements and assignments contemplated by this Section 2.03, and the
Trustee shall execute any powers of attorney that are prepared and delivered to
the Trustee by the Master Servicer and are necessary to permit the Master
Servicer to do so. The Master Servicer shall indemnify the Trustee for any
reasonable costs, fees, liabilities and expenses incurred by the Trustee in
connection with the negligent or willful misuse by the Master Servicer of such
powers of attorney.
(c) No substitution of a Qualified Substitute Mortgage Loan or Loans
may be made in any calendar month after the Determination Date for such month.
Periodic Payments due with respect to any Qualified Substitute Mortgage Loan
after the related date of substitution shall be part of REMIC I. No substitution
of a Qualified Substitute Mortgage Loan for a deleted Mortgage Loan shall be
permitted under this Agreement if after such substitution, the aggregate of the
Stated Principal Balances of all Qualified Substitute Mortgage Loans which have
been substituted for deleted Mortgage Loans exceeds 10% of the aggregate Cut-off
Date Balance of all the Mortgage Loans. Periodic Payments due with respect to
any Qualified Substitute Mortgage Loan on or prior to the related date of
substitution shall not be part of the Trust Fund or REMIC I and will (to the
extent received by the Master Servicer) be remitted by the Master Servicer to
the appropriate Mortgage Loan Seller promptly following receipt.
(d) Each Mortgage Loan Purchase Agreement provides the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect or Breach with respect to the
Mortgage Loans purchased by the Depositor thereunder.
(e) The Trustee with the cooperation of the Special Servicer (in the
case of Specially Serviced Mortgage Loans) shall, for the benefit of the
Certificateholders, enforce the
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obligations of the Mortgage Loan Seller under Section 3 of each Mortgage Loan
Purchase Agreement.
SECTION 2.04. Representations and Warranties of Depositor.
(a) The Depositor hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, and to the Master
Servicer and the Special Servicer, as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws of the State of North
Carolina.
(ii) The execution and delivery of this Agreement by the
Depositor, and the performance and compliance with the terms of this
Agreement by the Depositor, will not violate the Depositor's
certificate of incorporation or bylaws or constitute a default (or
an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or
which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Depositor, enforceable against
the Depositor in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance
with the terms of this Agreement will not constitute a violation of,
any law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Depositor's good faith
and reasonable judgment, is likely to affect materially and
adversely either the ability of the Depositor to perform its
obligations under this Agreement or the financial condition of the
Depositor.
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(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any
such approvals as have been obtained, and is not subject to any bulk
transfer or similar law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the
Depositor's knowledge, threatened against the Depositor that, if
determined adversely to the Depositor, would prohibit the Depositor
from entering into this Agreement or that, in the Depositor's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Depositor to perform its
obligations under this Agreement or the financial condition of the
Depositor.
(viii) Immediately prior to the transfer of the Mortgage Loans
to the Trust Fund pursuant to this Agreement, (A) the Depositor had
good and marketable title to, and was the sole owner and holder of,
each Mortgage Loan; and (B) the Depositor has full right and
authority to sell, assign and transfer the Mortgage Loans and all
servicing rights pertaining thereto.
(ix) The Depositor is transferring the Mortgage Loans to the
Trust Fund free and clear of any liens, pledges, charges and
security interests.
(b) The representations and warranties of the Depositor set forth in
Section 2.04(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice thereof to the
other parties.
SECTION 2.05. Execution, Authentication and Delivery of Class
R-I Certificates; Creation of REMIC I Regular
Interests.
The Trustee hereby acknowledges the assignment to it of the assets
included in the Trust Fund. Concurrently with such assignment and in exchange
therefor, (a) the Trustee agrees to hold the portion of each of the Mortgage
Loans included in REMIC I, and (b) the Certificate Registrar, pursuant to the
written request of the Depositor executed by an officer of the Depositor, has
executed, and the Authenticating Agent has authenticated and delivered to or
upon the order of the Depositor, the Class R-I Certificates in authorized
denominations. The interests evidenced by the Class R-I Certificates, together
with the REMIC I Regular Interests, constitute the entire beneficial ownership
of REMIC I. The rights of the Class R-I Certificateholders and REMIC II (as
holder of the REMIC I Regular Interests) to receive distributions from the
proceeds of REMIC I in respect of the Class R-I Certificates and the REMIC I
Regular Interests, respectively, and all
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ownership interests evidenced or constituted by the Class R-I Certificates and
the REMIC I Regular Interests, shall be as set forth in this Agreement.
SECTION 2.06. Conveyance of REMIC I Regular Interests;
Acceptance of REMIC II by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Holders of the Class R-II
Certificates and REMIC III as the holder of the REMIC II Regular Interests. The
Trustee acknowledges the assignment to it of the REMIC I Regular Interests and
declares that it holds and will hold the same in trust for the exclusive use and
benefit of all present and future Holders of the Class R-II Certificates and
REMIC III as the holder of the REMIC II Regular Interests.
SECTION 2.07. Execution, Authentication and Delivery of Class
R-II Certificates.
The Trustee pursuant to the written request of the Depositor
executed by an officer of the Depositor, has executed, as the Certificate
Registrar, authenticated, as the Authenticating Agent, and delivered to or upon
the order of the Depositor, the Class R-II Certificates in authorized
denominations.
SECTION 2.08. Conveyance of REMIC II Regular Interests;
Acceptance of REMIC III by Trustee.
The Depositor, as of the Closing Date, and concurrently with the
execution and delivery of this Agreement, does hereby assign without recourse
all the right, title and interest of the Depositor in and to the REMIC II
Regular Interests to the Trustee for the benefit of the respective Holders of
the REMIC III Certificates. The Trustee acknowledges the assignment to it of the
REMIC II Regular Interests and declares that it holds and will hold the same in
trust for the exclusive use and benefit of all present and future Holders of the
REMIC III Certificates.
SECTION 2.09. Execution, Authentication and Delivery of REMIC
III Certificates.
Concurrently with the assignment to it of the REMIC II Regular
Interests and in exchange therefor, the Trustee, as the Certificate Registrar,
has executed, and the Trustee, as the Authenticating Agent, has authenticated
and delivered to or upon the order of the Depositor, the REMIC III Certificates
in authorized denominations evidencing the entire beneficial ownership of REMIC
III. The rights of the holders of the respective Classes of REMIC III
Certificates to
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receive distributions from the proceeds of REMIC III in respect of their REMIC
III Certificates, and all ownership interests evidenced or constituted by the
respective Classes of REMIC III Certificates in such distributions, shall be as
set forth in this Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) Subject to Section 3.26 hereof, each of the Master Servicer and
the Special Servicer shall service and administer the Mortgage Loans that each
is obligated to service and administer pursuant to this Agreement on behalf of
the Trustee, for the benefit of the Certificateholders, in accordance with any
and all applicable laws, the terms of this Agreement and the terms of the
respective Mortgage Loans and, to the extent consistent with the foregoing, in
accordance with the Servicing Standard. Without limiting the foregoing, and
subject to Section 3.21, (i) the Master Servicer shall service and administer
all Mortgage Loans that are not Specially Serviced Mortgage Loans, and (ii) the
Special Servicer shall service and administer each Specially Serviced Mortgage
Loan and REO Property and shall render such services with respect to all
Mortgage Loans and REO Properties as are specifically provided for herein;
provided, that the Master Servicer shall continue to receive payments, make all
calculations, and prepare, or cause to be prepared, all reports required
hereunder with respect to the Specially Serviced Mortgage Loans, except for the
reports specified herein as prepared by the Special Servicer, as if no Servicing
Transfer Event had occurred and with respect to the REO Properties (and the
related REO Loans) as if no REO Acquisition had occurred, and to render such
incidental services with respect to such Specially Serviced Mortgage Loans and
REO Properties as are specifically provided for herein; provided, further,
however, that the Master Servicer shall not be liable for its failure to comply
with such duties insofar as such failure results from a failure by the Special
Servicer to provide sufficient information to the Master Servicer to comply with
such duties or failure by the Special Servicer to otherwise comply with its
obligations hereunder. All references herein to the respective duties of the
Master Servicer and the Special Servicer, and to the areas in which they may
exercise discretion, shall be subject to Section 3.21.
(b) Subject to Section 3.01(a) and Section 6.11, the Master Servicer
and the Special Servicer each shall have full power and authority, acting alone,
to do or cause to be done any and all things in connection with such servicing
and administration which it may deem necessary or desirable. Without limiting
the generality of the foregoing, each of the Master Servicer and the Special
Servicer, in its own name, with respect to each of the Mortgage Loans it is
obligated to service hereunder, is hereby authorized and empowered by the
Trustee to execute and deliver, on behalf of the Certificateholders and the
Trustee or any of them, (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
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on the related Mortgaged Property and related collateral; (ii) in accordance
with the Servicing Standard and subject to Section 3.20 and Section 6.11, any
and all modifications, waivers, amendments or consents to or with respect to any
documents contained in the related Mortgage File; and (iii) any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments. Subject to Section 3.10, the
Trustee shall, at the written request of the Master Servicer or the Special
Servicer, promptly execute any limited powers of attorney and other documents
furnished by the Master Servicer or the Special Servicer that are necessary or
appropriate to enable them to carry out their servicing and administrative
duties hereunder; provided, however, that the Trustee shall not be held liable
for any misuse of any such power of attorney by the Master Servicer or the
Special Servicer.
(c) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venture, partner or
agent. Unless the same Person acts as both Master Servicer and Special Servicer,
the Master Servicer shall not be responsible for the actions of or failure to
act by the Special Servicer and the Special Servicer shall not be responsible
for the actions of or the failure to act by the Master Servicer.
SECTION 3.02. Collection of Mortgage Loan Payments.
(a) Each of the Master Servicer or the Special Servicer shall
undertake reasonable efforts consistent with the Servicing Standard to collect
all payments required under the terms and provisions of the Mortgage Loans it is
obligated to service hereunder and shall, to the extent such procedures shall be
consistent with this Agreement, follow such collection procedures in accordance
with the Servicing Standard; provided, that with respect to the Mortgage Loans
that have Anticipated Repayment Dates, so long as the related Mortgagor is in
compliance with each provision of the related Mortgage Loan documents, the
Master Servicer and Special Servicer (including the Special Servicer in its
capacity as a Certificateholder), shall not take any enforcement action with
respect to the failure of the related Mortgagor to make any payment of
Additional Interest or principal in excess of the principal component of the
constant Periodic Payment, other than requests for collection, until the
maturity date of the related Mortgage Loan; provided, that the Master Servicer
or Special Servicer, as the case may be, may take action to enforce the Trust
Fund's right to apply excess cash flow to principal in accordance with the terms
of the Mortgage Loan documents. Consistent with the foregoing, the Special
Servicer, with regard to a Specially Serviced Mortgage Loan, or the Master
Servicer, with regard to a Mortgage Loan that is not a Specially Serviced
Mortgage Loan, may waive any Penalty Interest or late payment charge in
connection with any payment on a Mortgage Loan.
(b) All amounts collected in respect of any Mortgage Loan in the
form of payments from Mortgagors, Liquidation Proceeds (insofar as such
Liquidation Proceeds are of the nature described in clauses (i) through (iii) of
the definition thereof) or Insurance Proceeds shall be applied to either amounts
due and owing under the related Mortgage Note and Mortgage
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(including, without limitation, for principal and accrued and unpaid interest)
in accordance with the express provisions of the related Mortgage Note and
Mortgage or, if required pursuant to the express provisions of the related
Mortgage, or as determined by the Master Servicer or Special Servicer in
accordance with the Servicing Standard, to the repair or restoration of the
related Mortgaged Property, and, in the absence of such express provisions,
shall be applied for purposes of this Agreement: first, as a recovery of any
related and unreimbursed Advances plus interest accrued thereon; second, as a
recovery of accrued and unpaid interest at the related Mortgage Rate on such
Mortgage Loan, to the extent such amounts have not been previously advanced, and
exclusive of any portion thereof that constitutes Additional Interest; third, as
a recovery of principal of such Mortgage Loan then due and owing, to the extent
such amounts have not been previously advanced, including, without limitation,
by reason of acceleration of the Mortgage Loan following a default thereunder;
fourth, in accordance with the normal servicing practices of the Master
Servicer, as a recovery of any other amounts then due and owing under such
Mortgage Loan (other than Additional Interest), including, without limitation,
Prepayment Premiums, Yield Maintenance Charges and Penalty Interest; fifth, as a
recovery of any remaining principal of such Mortgage Loan to the extent of its
entire remaining unpaid principal balance; and sixth, with respect to any ARD
Loan after its Anticipated Repayment Date, as a recovery of any unpaid
Additional Interest. All amounts collected on any Mortgage Loan in the form of
Liquidation Proceeds of the nature described in clauses (iv) through (vi) of the
definition thereof shall be deemed to be applied: first, as a recovery of any
related and unreimbursed Advances plus interest accrued thereon; second, as a
recovery of accrued and unpaid interest at the related Mortgage Rate on such
Mortgage Loan to but not including the Due Date in the Collection Period of
receipt, to the extent such amounts have not been previously advanced, and
exclusive of any portion thereof that constitutes Additional Interest; third, as
a recovery of principal, to the extent such amounts have not been previously
advanced, of such Mortgage Loan to the extent of its entire unpaid principal
balance; and fourth, with respect to any ARD Loan after its Anticipated
Repayment Date, as a recovery of any unpaid Additional Interest. No such amounts
shall be applied to the items constituting additional servicing compensation as
described in the first sentence of Section 3.11(b) or 3.11(d) unless and until
all principal and interest then due and payable on such Mortgage Loan has been
collected. Amounts collected on any REO Loan shall be deemed to be applied in
accordance with the definition thereof. The provisions of this paragraph with
respect to the application of amounts collected on any Mortgage Loan shall not
alter in any way the right of the Master Servicer, the Special Servicer or any
other Person to receive payments from the Certificate Account as set forth in
clauses (ii) through (xiv) of Section 3.05(a) from amounts so applied.
(c) Within 30 days after the Closing Date, the Master Servicer shall
notify the RVI Policy Insurer that (i) both the Master Servicer and the Special
Servicer shall be sent notices under the RVI Policy and (ii) Norwest Bank
Minnesota, National Association, as trustee for the registered holders of the
First Union National Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C4, shall be the loss payee under each
RVI Policy. In the event that the Master Servicer has actual knowledge of an
Insured Event under any
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RVI Policy, the Master Servicer shall notify the Special Servicer thereof
within three Business Days after learning of such event. With respect to each
RVI Policy, the Master Servicer and the Special Servicer shall review and
familiarize itself with the terms and conditions relating to enforcement of
claims and shall monitor the dates by which any claim must be made or any action
must be taken under such policy. The Special Servicer shall prepare and file a
"proof of loss" form with the RVI Policy Insurer within five Business Days after
receiving notice or obtaining actual knowledge of any Insured Event under the
related policy and shall diligently process any claims under such policy in
accordance with the Servicing Standard. The Special Servicer will abide by the
terms and conditions relating to enforcing claims and monitor the dates by which
any claim or action must be taken (including delivering any notices to the RVI
Policy Insurer or performing any actions required under such policy) under each
RVI Policy to realize the full value of such RVI Policy for the benefit of the
Certificateholders. The Special Servicer shall give notice to the Master
Servicer of any claim made under any RVI Policy and of any Policy Termination
Event of which the Master Servicer does not already have notice.
(d) The Master Servicer shall make a Servicing Advance with respect
to a Mortgaged Property subject to a Credit Lease in an amount equal to all such
funds as are necessary for the costs of maintenance or repair of a Mortgaged
Property or other obligation of the related Mortgagor to the extent the failure
to complete such maintenance or repair or other obligation may give rise to an
Additional Right of the related Tenant and provided that the particular
Servicing Advance plus interest would not, if made, constitute a Nonrecoverable
Servicing Advance. All such Servicing Advances shall be reimbursable from
collections from the related Mortgagor, the related Reserve Funds or excess cash
flow after scheduled debt service on the related Mortgage Loan or as may be
provided in the related Credit Lease or general collections on the Mortgage Pool
if so permitted by Section 3.05(a)(vii). Notwithstanding the foregoing, the
Master Servicer shall not make such Servicing Advance or take such action unless
the Master Servicer shall determine that such Advance or action would not result
in liability to the Master Servicer or the Trust Fund under any applicable law
or the Mortgage Loan documents. The Master Servicer may consult with legal
counsel in making such determination, and the reasonable cost of such
consultation shall be covered by, and be reimbursable, as a Servicing Advance by
the Master Servicer. So long as the related Tenant is making its payments in an
amount otherwise sufficient to make the scheduled Periodic Payments under the
Mortgage Loan and the Master Servicer has not determined that such Servicing
Advance plus interest has or will become a Nonrecoverable Servicing Advance, the
Master Servicer may not transfer the Mortgage Loan to the Special Servicer under
clause (c) of the definition of "Specially Serviced Mortgage Loan." The Master
Servicer shall notify the Special Servicer of any Credit Lease Loan in respect
of which it has made Servicing Advances pursuant to this Section 3.02(d). No
costs incurred by the Master Servicer in effecting the foregoing payments shall
be added to the unpaid principal balance or Stated Principal Balance of the
related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so
permits. The foregoing shall in no way limit the Master Servicer's ability to
charge and collect from the Mortgagor or the related Tenant such costs, together
with interest thereon.
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(e) In the event that the Master Servicer receives notice of any
Policy Termination Event, the Master Servicer shall, within three Business Days
after receipt of such notice, notify the Special Servicer, the Trustee and the
Rating Agencies of such Policy Termination Event in writing. Upon receipt of
such notice, the Special Servicer shall, notwithstanding that the servicing of
the related Mortgage Loan may not have been transferred to the Special Servicer
in accordance with Section 3.21 hereof, address such Policy Termination
Event in accordance with the Servicing Standard. Any legal fees incurred in
connection with a resolution of a Policy Termination Event shall be paid by the
Master Servicer as a Servicing Advance or if such advance is deemed to be a
Nonrecoverable Advance such fees shall be reimbursable to it as an Additional
Trust Fund Expense from the Certificate Account pursuant to Section 3.05(a).
(f) Within 60 days after the Closing Date, the Master Servicer shall
notify each provider of a letter of credit for each Mortgage Loan identified as
having a letter of credit on the Mortgage Loan Schedule, that the Master
Servicer or the Special Servicer on behalf of the Trustee for the benefit of the
Certificateholders shall be the beneficiary under each such letter of credit.
SECTION 3.03. Collection of Taxes, Assessments and Similar
Items; Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Mortgage Loans, establish
and maintain one or more accounts (the "Servicing Accounts"), into which all
Escrow Payments shall be deposited and retained, and shall administer such
accounts in accordance with the terms of the Mortgage Loan documents. Each
Servicing Account shall be an Eligible Account. Withdrawals of amounts so
collected from a Servicing Account may be made (to the extent amounts have been
escrowed for such purpose) only to: (i) effect payment of items for which Escrow
Payments were collected and comparable items; (ii) reimburse the Master Servicer
or the Trustee for any Servicing Advances; (iii) refund to Mortgagors any sums
as may be determined to be overages; (iv) pay interest, if required and as
described below, to Mortgagors on balances in the Servicing Account; (v) pay
itself interest and investment income on balances in the Servicing Account as
described in Section 3.06(b), if and to the extent not required by law or the
terms of Mortgage Loan to be paid to the Mortgagor; (vi) withdraw amounts
deposited in error or (vii) clear and terminate the Servicing Account at the
termination of this Agreement in accordance with Section 9.01. To the extent
permitted by law or the applicable Mortgage Loan, funds in the Servicing
Accounts may be invested only in Permitted Investments in accordance with the
provisions of Section 3.06 and in accordance with the terms of the related
Mortgage Loan documents. The Master Servicer shall pay or cause to be paid to
the Mortgagors interest, if any, earned on the investment of funds in Servicing
Accounts maintained thereby, if required by law or the terms of the related
Mortgage Loan. If the Master Servicer shall deposit in a Servicing Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from such Servicing Account, any provision herein to the contrary
notwithstanding. The
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Servicing Accounts shall not be considered part of the segregated pool of assets
constituting REMIC I, REMIC II, REMIC III or the Grantor Trust.
(b) The Master Servicer (or the Special Servicer for Specially
Serviced Mortgage Loans and REO Loans) shall (i) maintain accurate records with
respect to the related Mortgaged Property reflecting the status of real estate
taxes, assessments and other similar items that are or may become a lien thereon
and the status of insurance premiums and any ground rents payable in respect
thereof and (ii) use reasonable efforts to obtain, from time to time, all bills
for the payment of such items (including renewal premiums) and shall effect
payment thereof prior to the applicable penalty or termination date and, in any
event, prior to the institution of foreclosure or similar proceedings with
respect to the related Mortgaged Property for nonpayment of such items. For
purposes of effecting any such payment for which it is responsible, the Master
Servicer shall apply Escrow Payments (at the direction of the Special Servicer
for Specially Serviced Mortgage Loans and REO Loans) as allowed under the terms
of the related Mortgage Loan or, if such Mortgage Loan does not require the
related Mortgagor to escrow for the payment of real estate taxes, assessments,
insurance premiums, ground rents (if applicable) and similar items, the Master
Servicer shall, as to all Mortgage Loans, use reasonable efforts consistent with
the Servicing Standard to enforce the requirement of the related Mortgage that
the Mortgagor make payments in respect of such items at the time they first
become due, and, in any event, prior to the institution of foreclosure or
similar proceedings with respect to the related Mortgaged Property for
nonpayment of such items.
(c) The Master Servicer shall, as to all Mortgage Loans, make a
Servicing Advance with respect to the related Mortgaged Property in an amount
equal to all such funds as are necessary for the purpose of effecting the
payment of (i) real estate taxes, assessments, penalties and other similar
items, (ii) ground rents (if applicable), and (iii) premiums on Insurance
Policies, in each instance if and to the extent Escrow Payments (if any)
collected from the related Mortgagor are insufficient to pay such item when due
and the related Mortgagor has failed to pay such item on a timely basis, and
provided that the Master Servicer shall not be obligated to make any Servicing
Advance that would, if made, constitute a Nonrecoverable Servicing Advance. All
such Servicing Advances shall be reimbursable in the first instance from related
collections from the Mortgagors, and further as provided in Section 3.05(a). No
costs incurred by the Master Servicer in effecting the payment of real estate
taxes, assessments and, if applicable, ground rents on or in respect of such
Mortgaged Properties shall, for purposes of this Agreement, including, without
limitation, the Paying Agent's calculation of monthly distributions to
Certificateholders, be added to the unpaid Stated Principal Balances of the
related Mortgage Loans, notwithstanding that the terms of such Mortgage Loans so
permit. The foregoing shall in no way limit the Master Servicer's ability to
charge and collect from the Mortgagor such costs together with interest thereon.
The Special Servicer shall give the Master Servicer and the Trustee
not less than five Business Days' notice with respect to Servicing Advances to
be made on any Specially
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Serviced Mortgage Loan, before the date on which the Master Servicer is required
to make any Servicing Advance with respect to a given Mortgage Loan or REO
Property; provided, however, that only two Business Days' notice shall be
required in respect of Servicing Advances required to be made on an urgent or
emergency basis (which may include, without limitation, Servicing Advances
required to make tax or insurance payments). In addition, the Special Servicer
shall provide the Master Servicer and the Trustee with such information in its
possession as the Master Servicer or the Trustee, as applicable, may reasonably
request to enable the Master Servicer or the Trustee, as applicable, to
determine whether a requested Servicing Advance would constitute a
Nonrecoverable Servicing Advance. Any request by the Special Servicer that the
Master Servicer make a Servicing Advance shall be deemed to be a determination
by the Special Servicer that such requested Servicing Advance is not a
Nonrecoverable Servicing Advance, and the Master Servicer shall be entitled to
conclusively rely on such determination. On the fourth Business Day before each
Distribution Date, the Special Servicer shall report to the Master Servicer the
Special Servicer's determination as to whether any Servicing Advance previously
made with respect to a Specially Serviced Mortgage Loan or REO Loan is a
Nonrecoverable Servicing Advance. The Master Servicer shall be entitled to
conclusively rely on such a determination.
If the Master Servicer is required under any provision of this
Agreement (including, but not limited to, this Section 3.03(c)) to make a
Servicing Advance, but does not do so within 15 days after such Advance is
required to be made, the Trustee shall, if a Responsible Officer of the Trustee
has actual knowledge of such failure on the part of the Master Servicer, give
written notice of such failure to the Master Servicer. If such Servicing Advance
is not made by the Master Servicer within three Business Days after such notice
then (subject to a determination that such Servicing Advance would not be a
Nonrecoverable Servicing Advance) the Trustee shall make such Servicing Advance.
Any failure by the Master Servicer to make a Servicing Advance hereunder shall
constitute an Event of Default by the Master Servicer subject to and as provided
in Section 7.01.
(d) In connection with its recovery of any Servicing Advance from
the Certificate Account pursuant to Section 3.05(a), each of the Master Servicer
and the Trustee shall be entitled to receive, out of any amounts then on deposit
in the Certificate Account, any unpaid interest at the Reimbursement Rate in
effect from time to time, compounded annually, accrued on the amount of such
Servicing Advance (to the extent made from its own funds) from the date made to
but not including the date of reimbursement such interest to be payable: (i) out
of late payment charges and Penalty Interest that have been collected on or in
respect of the related Mortgage Loan or REO Property from January 1 of the same
calendar year in which such Servicing Advance is reimbursed through the date of
such reimbursement (the use of such late payment charges and Penalty Interest to
be allocated between the Master Servicer and the Special Servicer on a pro rata
basis based on the amount of late payment charges and Penalty Interest that the
Master Servicer and the Special Servicer have received as additional servicing
compensation during such period); and (ii) to the extent that such late payment
charges and Penalty Interest are insufficient, but only after the related
Advance has been reimbursed pursuant to this Agreement, out of general
collections
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on the Mortgage Loans and REO Properties on deposit in the Certificate Account.
The Master Servicer shall reimburse itself or the Trustee, as appropriate and in
accordance with Section 3.05(a), for any Servicing Advance as soon as
practicable after funds available for such purpose are deposited in the
Certificate Account.
(e) The determination by the Master Servicer that it has made a
Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, shall be made in
accordance with the Servicing Standard and shall be evidenced by an Officers'
Certificate delivered promptly to the Trustee and the Depositor, setting forth
the basis for such determination, together with a copy of any appraisal of the
related Mortgaged Property or REO Property, as the case may be; which appraisal
shall take into account the factors specified in Section 3.18(e), including
without limitation, any environmental, engineering or other third party reports
available, and other factors that a prudent real estate appraiser would consider
and shall be conducted in accordance with the standards of the Appraisal
Institute performed pursuant to Section 3.09(a) by the Master Servicer, or by or
on behalf of the Special Servicer if the Mortgage Loan is a Defaulted Mortgage
Loan or, if no such appraisal has been performed, a copy of an appraisal of the
related Mortgaged Property or REO Property, performed within the twelve months
preceding such determination and the party delivering such appraisal has no
actual knowledge of a material adverse change in the condition of the related
Mortgaged Property that would draw into question the applicability of such
appraisal, by an Independent Appraiser or other expert in real estate matters,
and further accompanied by related Mortgagor operating statements and financial
statements, budgets and rent rolls of the related Mortgaged Property and any
engineers' reports, environmental surveys or similar reports that the Master
Servicer or the Special Servicer may have obtained and that support such
determination. The Trustee shall be entitled to rely, conclusively, on any
determination by the Master Servicer or the Special Servicer that a Servicing
Advance, if made, would be a Nonrecoverable Advance; provided, however, that if
the Master Servicer has failed to make a Servicing Advance for reasons other
than a determination by the Master Servicer that such Servicing Advance would be
a Nonrecoverable Advance, the Trustee shall make such Servicing Advance within
the time periods required by Section 3.03(c) unless the Trustee in good faith,
makes a determination that such Servicing Advance would be a Nonrecoverable
Advance.
(f) The Master Servicer shall, as to all Mortgage Loans, establish
and maintain, as applicable, one or more accounts (the "Reserve Accounts"), into
which all Reserve Funds, if any, shall be deposited and retained. Withdrawals of
amounts so deposited may be made (i) to pay for, or to reimburse the related
Mortgagor in connection with, the related environmental remediation, repairs
and/or capital improvements at the related Mortgaged Property if the repairs
and/or capital improvements have been completed, and such withdrawals are made
in accordance with the Servicing Standard and the terms of the related Mortgage
Note, Mortgage and any agreement with the related Mortgagor governing such
Reserve Funds and (ii) to pay the Master Servicer interest and investment income
earned on amounts in the Reserve Accounts as described below if permitted under
the related Mortgage Loan documents. To the extent permitted in the
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applicable Mortgage, funds in the Reserve Accounts to the extent invested may be
only invested in Permitted Investments in accordance with the provisions of
Section 3.06. All Reserve Accounts shall be Eligible Accounts. The Reserve
Accounts shall not be considered part of the segregated pool of assets
comprising REMIC I, REMIC II, REMIC III or the Grantor Trust. Consistent with
the Servicing Standard, the Master Servicer may waive or extend the date set
forth in any agreement governing such Reserve Funds by which the required
repairs and/or capital improvements at the related Mortgaged Property must be
completed.
SECTION 3.04. Certificate Account, Interest Reserve Account and
Distribution Account.
(a) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Certificate Account"), held on behalf of the
Trustee in trust for the benefit of the Certificateholders. The Certificate
Account shall be an Eligible Account. The Master Servicer shall deposit or cause
to be deposited in the Certificate Account, within one Business Day of receipt
of available funds (in the case of payments by Mortgagors or other collections
on the Mortgage Loans) or as otherwise required hereunder, the following
payments and collections received or made by the Master Servicer or on its
behalf subsequent to the Cut-off Date (other than in respect of principal and
interest on the Mortgage Loans due and payable on or before the Cut-off Date (or
in the case of Semi-Annual Mortgage Loans, interest accrued prior to the Cut-off
Date), which payments shall be delivered promptly to the appropriate Mortgage
Loan Seller or its designee, with negotiable instruments endorsed as necessary
and appropriate without recourse), other than amounts received from Mortgagors
which are to be used to purchase defeasance collateral, or payments (other than
Principal Prepayments) received by it on or prior to the Cut-off Date but
allocable to a period subsequent thereto:
(i) all payments on account of principal of the Mortgage
Loans, including Principal Prepayments;
(ii) all payments on account of interest on the Mortgage
Loans, including Additional Interest and Penalty Interest;
(iii) all Prepayment Premiums and Yield Maintenance Charges;
(iv) all Insurance Proceeds and Liquidation Proceeds (other
than Liquidation Proceeds described in clause (vi) of the definition
thereof that are required to be deposited in the Distribution
Account pursuant to Section 9.01) received in respect of any
Mortgage Loan;
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(v) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.06 in connection with losses incurred
with respect to Permitted Investments of funds held in the
Certificate Account;
(vi) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in
connection with losses resulting from a deductible clause in a
blanket hazard policy;
(vii) any amounts required to be transferred from an REO
Account pursuant to Section 3.16(c); and
(viii) any amount in respect of Purchase Prices and
Substitution Shortfall amounts pursuant to Section 2.03(b).
The foregoing requirements for deposit in the Certificate Account
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, amounts to be deposited in Reserve
Accounts, and amounts that the Master Servicer and the Special Servicer are
entitled to retain as additional servicing compensation pursuant to Sections
3.11(b) and (d), need not be deposited by the Master Servicer in the Certificate
Account. If the Master Servicer shall deposit in the Certificate Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Certificate Account, any provision herein to the contrary
notwithstanding. The Master Servicer shall promptly deliver to the Special
Servicer as additional servicing compensation in accordance with Section
3.11(d), assumption fees, late payment charges (to the extent not applied to pay
interest on Advances as provided in Sections 3.03(d) or 4.03(d)) and other
transaction fees received by the Master Servicer to which the Special Servicer
is entitled pursuant to either of such Sections upon receipt of a certificate of
a Servicing Officer of the Special Servicer describing the item and amount,
provided, the Special Servicer shall not be entitled to any such additional
servicing compensation regarding the Split Note. The Certificate Account shall
be maintained as a segregated account, separate and apart from trust funds
created for mortgage pass-through certificates of other series and the other
accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv) above with respect to any Mortgage Loan, the Special Servicer shall
promptly, but in no event later than one Business Day after receipt, remit such
amounts (net of any reimbursable expenses incurred by the Special Servicer) to
or at the direction of the Master Servicer for deposit into the Certificate
Account in accordance with the second preceding paragraph, unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item should not be deposited because of a restrictive endorsement. Any such
amounts received by the Special Servicer with respect to an REO Property shall
be deposited by the Special Servicer into the REO Account and remitted to the
Master Servicer for deposit into the Certificate Account pursuant to Section
3.16(c). With respect to any such amounts paid by check to the order of the
Special
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Servicer, the Special Servicer shall endorse such check to the order of the
Master Servicer and shall deliver promptly, but in no event later than three
Business Days after receipt, any such check to the Master Servicer by overnight
courier, unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item cannot be so endorsed and delivered because of
a restrictive endorsement or other appropriate reason.
(b) The Paying Agent shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") at the Corporate Trust
Office to be held in trust for the benefit of the Certificateholders. The
Distribution Account shall be an Eligible Account. The Master Servicer shall
deliver to the Paying Agent each month on or before the P&I Advance Date
therein, for deposit in the Distribution Account, an aggregate amount of
immediately available funds equal to that portion of the Available Distribution
Amount (calculated without regard to clauses (a)(ii) and (b)(ii)(B) of the
definition thereof) for the related Distribution Date then on deposit in the
Certificate Account, together with (i) any Prepayment Premiums, Yield
Maintenance Charges and/or Additional Interest received on the Mortgage Loans
during the related Collection Period and (ii) in the case of the final
Distribution Date, any additional amounts contemplated by the second paragraph
of Section 9.01.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Paying Agent for deposit in the Distribution Account:
(i) any P&I Advances required to be made by the Master
Servicer in accordance with Section 4.03(a);
(ii) [Intentionally Omitted];
(iii) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.19 in connection with Prepayment
Interest Shortfalls; and
(iv) the Purchase Price paid in connection with the purchase
by the Master Servicer of all of the Mortgage Loans and any REO
Properties pursuant to Section 9.01, exclusive of the portion of
such amounts required to be deposited in the Certificate Account
pursuant to Section 9.01.
The Paying Agent shall, upon receipt, deposit in the Distribution
Account any and all amounts received by the Paying Agent that are required by
the terms of this Agreement to be deposited therein.
(c) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Interest Reserve Account"), held on behalf of the
Trustee in trust for the benefit of the Certificateholders. The Interest Reserve
Account shall be an Eligible Account. On or
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before each Distribution Date in February and, during each year that is not a
leap year, January, the Master Servicer shall withdraw from the Certificate
Account and deposit in the Interest Reserve Account, with respect to each
Interest Reserve Loan, an amount equal to the Interest Reserve Amount in respect
of such Interest Reserve Loan for such Distribution Date (such withdrawal from
the Certificate Account to be made out of general collections on the Mortgage
Pool where any related P&I Advance was deposited in the Distribution Account).
(d) Funds in the Certificate Account, the Interest Reserve Account
and the Distribution Account may be invested only in Permitted Investments in
accordance with the provisions of Section 3.06. The Master Servicer shall give
written notice to the Trustee, the Special Servicer and the Rating Agencies of
the location of the Certificate Account as of the Closing Date and of the new
location of the Certificate Account prior to any change thereof. The Paying
Agent shall give notice to the Trustee, the Master Servicer, the Special
Servicer and the Rating Agencies of any new location of the Distribution Account
prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Certificate Account,
Interest Reserve Account and the Distribution Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Certificate Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Paying Agent for deposit in the
Distribution Account the amounts required to be so deposited
pursuant to the first paragraph of Section 3.04(b) and any amount
that may be applied to make P&I Advances pursuant to Section
4.03(a);
(ii) to reimburse the Trustee and itself, in that order, for
xxxxxxxxxxxx X&X Advances, the Trustee's and Master Servicer's right
to reimbursement pursuant to this clause (ii) with respect to any
P&I Advance (other than Nonrecoverable Advances, which are
reimbursable pursuant to clause (vii) below) being limited to
amounts that represent Late Collections of interest (and in the case
of Semi-Annual Mortgage Loans, the Periodic Payment in respect of
interest (net of the related Servicing Fees)) and principal (net of
any related Workout Fee or Principal Recovery Fee) received in
respect of the particular Mortgage Loan or REO Loan as to which such
P&I Advance was made;
(iii) to pay to itself earned and unpaid Master Servicing Fees
in respect of each Mortgage Loan and REO Loan, the Master Servicer's
right to payment pursuant to this clause (iii) with respect to any
Mortgage Loan or REO Loan being limited to amounts received on or in
respect of such Mortgage Loan (whether in the form of payments,
Liquidation Proceeds or Insurance Proceeds) or such REO Loan
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(whether in the form of REO Revenues, Liquidation Proceeds or
Insurance Proceeds) that are allocable as a recovery of interest
thereon;
(iv) to pay to the Special Servicer earned and unpaid Special
Servicing Fees in respect of each Specially Serviced Mortgage Loan
and REO Loan;
(v) to pay the Special Servicer (or, if applicable, a
predecessor Special Servicer) earned and unpaid Workout Fees or
Principal Recovery Fees in respect of each Specially Serviced
Mortgage Loan, Corrected Mortgage Loan and REO Loan, the Special
Servicer's (or, if applicable, any predecessor Special Servicer's)
right to payment pursuant to this clause (v) with respect to any
such Mortgage Loan or REO Loan being limited to amounts received on
or in respect of such Mortgage Loan (whether in the form of payments
or Liquidation Proceeds) or such REO Loan (whether in the form of
REO Revenues or Liquidation Proceeds) that are allocable as a
recovery of principal or interest thereon (provided that no
Principal Recovery Fee shall be payable out of (i) Insurance
Proceeds and (ii) any Liquidation Proceeds received in connection
with the purchase of any Mortgage Loan or REO Property by the
applicable Mortgage Loan Seller pursuant to the respective Mortgage
Loan Purchase Agreement, by the Majority Subordinate
Certificateholder pursuant to Section 3.18(b), by the Master
Servicer or Special Servicer pursuant to Section 3.18(c) or by the
Depositor, the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholder pursuant to Section 9.01);
(vi) to reimburse the Trustee or itself, in that order, for
any unreimbursed Servicing Advances, the Trustee's and the Master
Servicer's respective rights to reimbursement pursuant to this
clause (vi) with respect to any Servicing Advance being limited to
payments made by the related Mortgagor that are allocable to such
Servicing Advance, or to Liquidation Proceeds, Insurance Proceeds
and, if applicable, REO Revenues received in respect of the
particular Mortgage Loan or REO Property as to which such Servicing
Advance was made;
(vii) to reimburse the Trustee or itself, in that order, for
any unreimbursed Advances that have been or are determined to be
Nonrecoverable Advances or to pay itself, with respect to any
Mortgage Loan or REO Property, any related earned Servicing Fee that
remained unpaid in accordance with clause (iii) above following a
Final Recovery Determination made with respect to such Mortgage Loan
or REO Property and the deposit into the Certificate Account of all
amounts received in connection therewith;
(viii) at such time as it reimburses the Trustee or itself, in
that order, for any unreimbursed Advance pursuant to clause (ii),
(vi) or (vii) above, to pay the
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Trustee or itself, as the case may be, in that order, any interest
accrued and payable thereon in accordance with Section 3.03(d) or
4.03(d), as applicable; the Master Servicer's rights to payment
pursuant to this clause (viii) with respect to interest on any
Advance being permitted to be satisfied (A) out of late payment
charges and Penalty Interest that have been collected on or in
respect of the related Mortgage Loan or REO Loan, from January 1 of
the same calendar year in which such Advance is reimbursed through
the date of such reimbursement (the use of such late payment charges
and Penalty Interest to be allocated between the Master Servicer and
the Special Servicer on a pro rata basis based on the amount of late
payment charges and Penalty Interest that the Master Servicer and
the Special Servicer have received as additional servicing
compensation during such period), and (B) to the extent that the
late payment charges and Penalty Interest described in the
immediately preceding clause (A) are insufficient, but only after
such Advance has been reimbursed, out of general collections on the
Mortgage Loans and any REO Properties on deposit in the Certificate
Account;
(ix) to pay for costs and expenses incurred by (A) the Trust
Fund pursuant to Sections 2.01(b), 3.02(d), (e) and (f) and 3.09(c)
and (B) the Special Servicer pursuant to Section 3.12(a);
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b), (A) interest and investment income
earned in respect of amounts held in the Certificate Account as
provided in Section 3.06(b), but only to the extent of the Net
Investment Earnings with respect to the Certificate Account for any
Collection Period; (B) Prepayment Interest Excesses and (C) Penalty
Interest and late payment charges; (to the extent such Penalty
Interest and/or late payment charges were not applied to offset
interest on Advances pursuant to clause (viii)(A) above);
(xi) to pay for the cost of an independent appraiser or other
expert in real estate matters retained pursuant to Section 3.03(e),
3.09(a), 3.18(e) or 4.03(c);
(xii) to pay itself, the Special Servicer, the Depositor, or
any of their respective directors, officers, members, managers,
employees and agents, as the case may be, any amounts payable to any
such Person pursuant to Section 6.03;
(xiii) to pay for (A) the advice of counsel and tax
accountants contemplated by Section 3.17(a)(iii), (B) the cost of
the Opinions of Counsel contemplated by Sections 3.09(b)(ii),
3.09(c) and 11.02(a), (C) the cost of an Opinion of Counsel
contemplated by Section 11.01(a) or 11.01(c) in connection with any
amendment to this Agreement requested by the Master Servicer or the
Special Servicer that protects or is in furtherance of the rights
and interests of
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Certificateholders, and (D) the cost of recording this Agreement in
accordance with Section 11.02(a);
(xiv) to pay itself, the Special Servicer, the appropriate
Mortgage Loan Seller, the Majority Subordinate Certificateholder or
any other Person, as the case may be, with respect to each Mortgage
Loan, if any, previously purchased by such Person pursuant to this
Agreement, all amounts received thereon subsequent to the date of
purchase;
(xv) to withdraw any Interest Reserve Amount and deposit such
Interest Reserve Amount into the Interest Reserve Account pursuant
to Section 3.04(c);
(xvi) to withdraw any amounts deposited in error;
(xvii) to withdraw the Swap Fee payable with respect to any
Semi-Annual Mortgage Loan for which there is a Due Date occurring in
the related Collection Period, such withdrawal to be limited to
amounts received in respect of the related Periodic Payment;
(xviii) to withdraw any other amounts that this Agreement
expressly provides may be withdrawn from the Certificate Account;
and
(xix) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from the Certificate Account pursuant to clauses
(ii) - (xv) above.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer) or the Trustee from
the Certificate Account amounts permitted to be paid to the Special Servicer (or
to such third party contractors) or the Trustee therefrom promptly upon receipt
of a certificate of a Servicing Officer of the Special Servicer or of a
Responsible Officer of the Trustee describing the item and amount to which the
Special Servicer (or such third party contractors) or the Trustee is entitled.
The Master Servicer may rely conclusively on any such certificate and shall have
no duty to re-calculate the amounts stated therein. The Special Servicer shall
keep and maintain separate accounting for each Specially Serviced Mortgage Loan
and REO Property, on a loan-by-loan and property-by-property basis, for the
purpose of justifying any request for withdrawal from the Certificate Account.
With respect to each Mortgage Loan for which it makes an Advance, the Trustee
shall similarly keep and maintain separate accounting for each Mortgage Loan, on
a loan-by-loan and property-by-
86
property basis, for the purpose of justifying any request for withdrawal from
the Certificate Account for reimbursements of Advances or interest thereon.
(b) The Paying Agent may, from time to time, make withdrawals from
the Distribution Account for any of the following purposes (in no particular
order of priority):
(i) to make distributions to Certificateholders on each
Distribution Date pursuant to Section 4.01 or 9.01, as applicable;
(ii) to pay the Trustee or any of its directors, officers,
employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05;
(iii) [Intentionally Omitted];
(iv) to pay for the cost of the Opinions of Counsel sought by
the Trustee (A) as provided in clause (v) of the definition of
"Disqualified Organization", (B) as contemplated by Sections
9.02(a)(i) and 10.01(i), or (C) as contemplated by Section 11.01(a)
or 11.01(c) in connection with any amendment to this Agreement
requested by the Trustee which amendment is in furtherance of the
rights and interests of Certificateholders;
(v) to pay any and all federal, state and local taxes imposed
on any of the REMICs created hereunder or on the assets or
transactions of any such REMIC, together with all incidental costs
and expenses, to the extent none of the Trustee, the REMIC
Administrator, the Master Servicer or the Special Servicer is liable
therefor pursuant to Section 10.01(j);
(vi) to pay the REMIC Administrator any amounts reimbursable
to it pursuant to Section 10.01(f);
(vii) to pay to the Master Servicer any amounts deposited by
the Master Servicer in the Distribution Account not required to be
deposited therein; and
(viii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) The Master Servicer shall on each P&I Advance Date to occur in
March of each year, withdraw from the Interest Reserve Account and deposit into
the Distribution Account in respect of each Interest Reserve Loan, an amount
equal to the aggregate of the Interest Reserve Amounts deposited into the
Interest Reserve Account pursuant to Section 3.04(c) during the
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immediately preceding Collection Period and, if applicable, the second preceding
Collection Period.
SECTION 3.06. Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Certificate Account, the
Distribution Account and the REO Account.
(a) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Interest
Reserve Account or the Certificate Account (each, for purposes of this Section
3.06, an "Investment Account"), and the Special Servicer may direct in writing
any depository institution maintaining the REO Account (also, for purposes of
this Section 3.06, an "Investment Account"), to invest, or if it is such
depository institution, may itself invest, the funds held therein only in one or
more Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, no later than the Business Day immediately preceding
the next succeeding date on which such funds are required to be withdrawn from
such account pursuant to this Agreement. Funds held in the Distribution Account
shall remain uninvested. In the event that the Master Servicer shall have failed
to give investment directions for any Servicing Account, any Reserve Account,
the Certificate Account or the Interest Reserve Account (exclusive of any
accounts as are held by the Master Servicer) or the Special Servicer shall have
failed to give investment directions for the REO Account by 11:00 A.M. New York
time on any Business Day on which there may be uninvested cash, such funds held
in the REO account shall be invested in securities described in clause (i) of
the definition of the term "Permitted Investments"; and such funds held in such
other accounts shall be invested in securities described in clause (v) of such
definition. All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trustee (in its capacity as such). The Master Servicer
(with respect to Permitted Investments of amounts in the Servicing Accounts, the
Reserve Accounts, the Certificate Account or the Interest Reserve Account) and
the Special Servicer (with respect to Permitted Investments of amounts in the
REO Account), on behalf of the Trustee, shall (and the Trustee hereby designates
the Master Servicer and the Special Servicer, as applicable, as the person that
shall) maintain continuous possession of any Permitted Investment that is either
(i) a "certificated security", as such term is defined in the UCC, or (ii) other
property in which a secured party may perfect its security interest by
possession under the UCC or any other applicable law. Possession of any such
Permitted Investment by the Master Servicer or the Special Servicer shall
constitute possession by a Person designated by the Trustee for purposes of
Section 8-313 of the UCC and possession by the Trustee, as secured party, for
purposes of Section 9-305 of the UCC and any other applicable law. If amounts on
deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Master Servicer (in the case of the
Certificate Account, Servicing Accounts, the Interest Reserve Account and
Reserve Accounts) or the Special Servicer (in the case of the REO Account)
shall:
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(x) consistent with any notice required to be given
thereunder, demand that payment thereon be made on the last day such
Permitted Investment may otherwise mature hereunder in an amount
equal to the lesser of (1) all amounts then payable thereunder and
(2) the amount required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer or the Special Servicer, as the
case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in
the Investment Account.
(b) Whether or not the Master Servicer directs the investment of
funds in any of the Servicing Accounts, the Reserve Accounts, the Certificate
Account, or the Interest Reserve Account, interest and investment income
realized on funds deposited therein, to the extent of the related Net Investment
Earnings, if any, for each Collection Period and, in the case of a Reserve
Account or a Servicing Account, to the extent not otherwise payable to the
related Mortgagor in accordance with applicable law or the related Mortgage Loan
documents, shall be for the sole and exclusive benefit of the Master Servicer
and shall be subject to its withdrawal in accordance with Section 3.03(a),
3.03(f) or 3.05(a) or withdrawal by the Paying Agent at its direction in
accordance with Sections 3.05(b), as applicable. Whether or not the Special
Servicer directs the investment of funds in the REO Account, interest and
investment income realized on funds deposited therein, to the extent of the Net
Investment Earnings, if any, for each Collection Period, shall be for the sole
and exclusive benefit of the Special Servicer and shall be subject to its
withdrawal in accordance with Section 3.16(b). If any loss shall be incurred in
respect of any Permitted Investment on deposit in any Investment Account, the
Master Servicer (in the case of the Servicing Accounts, the Reserve Accounts,
the Interest Reserve Account and the Certificate Account, excluding any accounts
containing amounts invested solely for the benefit of, and at the direction of,
the Mortgagor under the terms of the Mortgage Loan or applicable law) and the
Special Servicer (in the case of the REO Account) shall promptly deposit therein
from its own funds, without right of reimbursement, no later than the end of the
Collection Period during which such loss was incurred, the amount of the Net
Investment Loss, if any, for such Collection Period, PROVIDED, that neither the
Master Servicer nor the Special Servicer shall be required to deposit any loss
on an investment of funds in an Investment Account if such loss is incurred
solely as a result of the insolvency of the federal or state chartered
depository institution or trust company that holds such Investment Account, so
long as such depository institution or trust company satisfied the
qualifications set forth in the definition of Eligible Account at the time such
investment was made.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment and the Special Servicer or the Master Servicer fails to deposit any
losses with respect to such Permitted Investment pursuant to Section 3.06(b),
the Trustee may and, subject to Section 8.02, upon the request of Holders of
Certificates entitled to not less than 25% of the Voting Rights allocated to any
Class, shall take
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such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including, without
limitation, the calculation of the Available Distribution Amount, the amounts so
invested shall be deemed to remain on deposit in such Investment Account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.
(a) The Master Servicer (with respect to Mortgage Loans other than
Specially Serviced Mortgaged Loans) and the Special Servicer (with respect to
Specially Serviced Mortgage Loans) shall, consistent with the Servicing
Standard, cause to be maintained for each Mortgaged Property all insurance
coverage as is required under the related Mortgage; provided that if and to the
extent that any such Mortgage permits the holder thereof any discretion (by way
of consent, approval or otherwise) as to the insurance coverage that the related
Mortgagor is required to maintain, the Master Servicer shall exercise such
discretion in a manner consistent with the Servicing Standard; and provided
further that, if and to the extent that a Mortgage so permits, the related
Mortgagor shall be required to exercise its reasonable best efforts to obtain
the required insurance coverage from Qualified Insurers. The cost of any such
insurance coverage obtained by either the Master Servicer or the Special
Servicer shall be a Servicing Advance to be paid by the Master Servicer pursuant
to Section 3.03. The Majority Subordinate Certificateholder may request that
earthquake insurance be secured for one or more Mortgaged Properties at the
expense of the Majority Subordinate Certificateholder. Subject to Section
3.17(a), the Special Servicer shall also cause to be maintained for each REO
Property no less insurance coverage than was previously required of the
Mortgagor under the related Mortgage; provided that all such insurance shall be
obtained from Qualified Insurers. All such insurance policies (i) shall contain
(if they insure against loss to property and do not relate to an REO Property) a
"standard" mortgagee clause, with loss payable to the Trustee or the Master
Servicer on behalf of the Trustee (in the case of insurance maintained in
respect of Mortgage Loans); (ii) shall be in the name of the Special Servicer
(in the case of insurance maintained in respect of REO Properties), on behalf of
the Trustee; (iii) shall be non-cancelable without 30 days' prior written notice
to the insured party; and (iv) in each case such insurance shall be issued by an
insurer authorized under applicable law to issue such insurance. Any amounts
collected by the Master Servicer or the Special Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the related
Mortgaged Property or REO Property or amounts to be released to the related
Mortgagor, in each case subject to the rights of any tenants and ground lessors,
as the case may be, and in each case in accordance with the terms of the related
Mortgage and the Servicing Standard) shall be deposited in the Certificate
Account, subject to withdrawal pursuant to Section 3.05(a), in the case of
amounts received in respect of a Mortgage Loan, or in the REO Account, subject
to withdrawal pursuant to Section 3.16(c), in the case of amounts received in
respect of an REO Property. Any
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cost incurred by the Master Servicer or the Special Servicer in maintaining any
such insurance shall not, for purposes hereof, including, without limitation,
calculating monthly distributions to Certificateholders, be added to unpaid
principal balance of the related Mortgage Loan, notwithstanding that the terms
of such Mortgage Loan so permit.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy insuring
against hazard losses on all of the Mortgage Loans and/or REO Properties that it
is required to service and administer, then, to the extent such policy (i) is
obtained from a Qualified Insurer and (ii) provides protection equivalent to the
individual policies otherwise required, the Master Servicer or the Special
Servicer, as the case may be, shall conclusively be deemed to have satisfied its
obligation to cause hazard insurance to be maintained on the related Mortgaged
Properties and/or REO Properties. Such blanket policy may contain a deductible
clause (not in excess of a customary amount), in which case the Master Servicer
or the Special Servicer, as appropriate, shall, if there shall not have been
maintained on the related Mortgaged Property or REO Property a hazard insurance
policy complying with the requirements of Section 3.07(a), and there shall have
been one or more losses that would have been covered by such policy, promptly
deposit into the Certificate Account from its own funds the amount not otherwise
payable under the blanket policy because of such deductible clause. The Master
Servicer or the Special Servicer, as appropriate, shall prepare and present, on
behalf of itself, the Trustee and Certificateholders, claims under any such
blanket policy in a timely fashion in accordance with the terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall at
all times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans or REO Properties are part of the Trust Fund) keep in
force a fidelity bond with Qualified Insurers, such fidelity bond to be in such
form and amount as would permit it to be a qualified FNMA or FHLMC, whichever is
greater, seller-servicer of multifamily mortgage loans, or in such other form
and amount as would not cause the qualification, downgrading or withdrawal of
any rating assigned by any Rating Agency to the Certificates (as evidenced in
writing from each Rating Agency). Each of the Master Servicer and the Special
Servicer shall be deemed to have complied with the foregoing provision if an
Affiliate thereof has such fidelity bond coverage and, by the terms of such
fidelity bond, the coverage afforded thereunder extends to the Master Servicer
or the Special Servicer, as the case may be. Such fidelity bond shall provide
for ten days' written notice to the Trustee prior to any cancellation.
Each of the Master Servicer and the Special Servicer shall at all
times during the term of this Agreement (or, in the case of the Special
Servicer, at all times during the term of this Agreement in which Specially
Serviced Mortgage Loans and/or REO Properties exist as part of the Trust Fund)
also keep in force with Qualified Insurers, a policy or policies of insurance
covering loss occasioned by the errors and omissions of its officers, employees
and agents in connection with its servicing obligations hereunder, which policy
or policies shall be in such form
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and amount as would permit it to be a qualified FNMA seller-servicer of
multifamily mortgage loans, or in such other form and amount as would not cause
the qualification (if applicable), downgrade or withdrawal of any rating
assigned by any Rating Agency to the Certificates (as evidenced in writing from
each Rating Agency). Each of the Master Servicer and the Special Servicer shall
be deemed to have complied with the foregoing provisions if an Affiliate thereof
has such insurance and, by the terms of such policy or policies, the coverage
afforded thereunder extends to the Master Servicer or the Special Servicer, as
the case may be. Any such errors and omissions policy shall provide for ten
days' written notice to the Trustee prior to cancellation. The Master Servicer
and the Special Servicer shall each cause the Trustee to be an additional loss
payee on any policy currently in place or procured pursuant to the requirements
of this Section 3.07(c).
For so long as the long-term debt obligations of the Master Servicer
or Special Servicer, as the case may be (or in the case of the initial Master
Servicer and Special Servicer, their respective direct or indirect parent), are
rated at least "A" or the equivalent by all of the Rating Agencies (or such
lower rating as will not result in qualification, downgrading or withdrawal of
the ratings then assigned to the Certificates, as evidenced in writing by the
Rating Agencies), such Person may self-insure with respect to the risks
described in this subsection.
SECTION 3.08. Enforcement of Alienation Clauses.
(a) With respect to all Mortgage Loans other than Specially Serviced
Mortgage Loans, the Master Servicer or, in the case of a Specially Serviced
Mortgage Loan, the Special Servicer, on behalf of the Trustee as the mortgagee
of record, shall, to the extent permitted by applicable law, enforce the
restrictions contained in the related Mortgage on transfers or further
encumbrances of the related Mortgaged Property and on transfers of interests in
the related Mortgagor, unless the Master Servicer (with the written consent of
the Special Servicer) or the Special Servicer, as applicable, has determined,
consistent with the Servicing Standard, that waiver of such restrictions would
be in accordance with the Servicing Standard. Promptly after the Master Servicer
(with the written consent of the Special Servicer) or the Special Servicer, as
applicable, has made any such determination, the Master Servicer or the Special
Servicer shall deliver to the Trustee, the Rating Agencies and each other an
Officers' Certificate setting forth the basis for such determination. The Master
Servicer or the Special Servicer shall not exercise (and the Special Servicer
shall not consent to) any such waiver in respect of a due-on-encumbrance
provision of any Mortgage Loan without receiving the prior written confirmation
from the Rating Agencies that such action would not result in a downgrading,
qualification or withdrawal of the ratings then assigned to the Certificates.
The Master Servicer or the Special Servicer shall not exercise (and the Special
Servicer shall not consent to) any such waiver in respect of a due-on-sale
provision of any Mortgage Loan for which the aggregate of the Stated Principal
Balance of such Mortgage Loan and the Stated Principal Balance of all other
Mortgage Loans that are cross-collateralized, cross-defaulted or have been made
to Mortgagors affiliated with the Mortgagor on such Mortgage Loan, are (i) as to
DCR equal to or greater than 2% of the aggregate Stated Principal Balance of all
Mortgage Loans and (ii) as to Standard & Poor's, equal to or greater than
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5% of the aggregate Stated Principal Balance of all Mortgage Loans or
$20,000,000, without receiving the prior written confirmation from the
applicable Rating Agency that such action would not result in a downgrading,
qualification (if applicable) or withdrawal of any of the ratings then assigned
to the Certificates. In the event that such Mortgage Loan does not meet the
criteria set forth in (i) and (ii) in the prior sentence, and the Mortgage Loan
documents contain a requirement for Rating Agency approval, the Master Servicer
or the Special Servicer may waive such requirement without Rating Agency
approval in accordance with the Servicing Standards.
(b) Notwithstanding any other provisions of this Section 3.08, the
Master Servicer (without the Special Servicer's consent) or the Special
Servicer, as applicable, may grant, without any Rating Agency confirmation as
provided in paragraph (a) above, a Mortgagor's request for consent to subject
the related Mortgaged Property to an easement or right-of-way for utilities,
access, parking, public improvements or another purpose, and may consent to
subordination of the related Mortgage Loan to such easement or right-of-way
provided the Master Servicer or the Special Servicer, as applicable, shall have
determined in accordance with the Servicing Standards that such easement or
right-of-way shall not materially interfere with the then-current use of the
related Mortgaged Property, or the security intended to be provided by such
Mortgage, the related Mortgagor's ability to repay the Mortgage Loan, or
materially or adversely affect the value of such Mortgaged property or cause the
Mortgage Loan to cease to be a qualified mortgage loan for REMIC purposes.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans;
Required Appraisals.
(a) The Special Servicer shall, subject to Sections 3.09(b) through
3.09(d) and Section 6.11, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments, including, without limitation, pursuant to
Section 3.20. Subject to the second paragraph of Section 3.03(c), the Master
Servicer shall advance all costs and expenses (other than costs or expenses that
would, if incurred, constitute a Nonrecoverable Servicing Advance) incurred by
the Special Servicer in any such proceedings, and shall be entitled to
reimbursement therefor as provided in Section 3.05(a). Nothing contained in this
Section 3.09 shall be construed so as to require the Special Servicer, on behalf
of the Trust Fund, to make a bid on any Mortgaged Property at a foreclosure sale
or similar proceeding that is in excess of the fair market value of such
property, as determined by the Special Servicer in accordance with the Servicing
Standard and in its reasonable and good faith judgment taking into account the
factors described in Section 3.18(e) and the results of any appraisal obtained
pursuant to the following sentence, all such bids to be made in a manner
consistent with the Servicing Standard. If and when the Master Servicer or the
Special Servicer deems it necessary and prudent for purposes of establishing the
fair market value of any Mortgaged Property securing a defaulted Mortgage Loan,
whether for purposes of bidding at foreclosure or otherwise, it may, at the
expense of the Trust
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Fund, have an appraisal performed with respect to such property by an
Independent Appraiser or other expert in real estate matters; which appraisal
shall take into account the factors specified in Section 3.18(e), including
without limitation, any environmental, engineering or other third party reports
available, and other factors that a prudent real estate appraiser would
consider. With respect to each Required Appraisal Mortgage Loan, the Special
Servicer will be required to obtain a Required Appraisal (or with respect to any
Mortgage Loan with an outstanding principal balance less than $1,000,000, an
internal valuation performed by the Special Servicer) within 60 days of a
Mortgage Loan becoming a Required Appraisal Mortgage Loan (unless an appraisal
meeting the requirements of a Required Appraisal was obtained for such Required
Appraisal Mortgage Loan within the prior 12 months and the Special Servicer has
no actual knowledge of a material adverse change in the condition of the related
Mortgaged Property in which case such appraisal may be a letter update of the
Required Appraisal) and thereafter shall obtain a Required Appraisal (or with
respect to any Mortgage Loan with an outstanding principal balance less than
$1,000,000, an internal valuation performed by the Special Servicer) once every
12 months (or sooner if the Special Servicer has actual knowledge of a material
adverse change in the condition of the related Mortgaged Property) if such
Mortgage Loan remains a Required Appraisal Mortgage Loan. The Special Servicer
will deliver a copy of each Required Appraisal (or internal valuation) to the
Master Servicer and the Trustee within 10 Business Days of obtaining such
Required Appraisal. Subject to the second paragraph of Section 3.03(c), the
Master Servicer shall advance the cost of such Required Appraisal; provided,
however, that such expense will be subject to reimbursement to the Master
Servicer as a Servicing Advance out of the Certificate Account pursuant to
Section 3.05(a)(vi) and 3.05(a)(vii).
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property
(within the meaning of Section 856(e)(1) of the Code) so acquired by
the Special Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel (the cost of which may be withdrawn from the Certificate
Account pursuant to Section 3.05(a)) to the effect that the holding
of such personal property as part of the Trust Fund will not cause
the imposition of a tax on any of REMIC I, REMIC II or REMIC III
under the REMIC Provisions or cause any of REMIC I, REMIC II or
REMIC III to fail to qualify as a REMIC at any time that any
Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trustee, obtain title to a Mortgaged Property by deed in lieu of foreclosure or
otherwise, or take any other action with respect to any Mortgaged Property, if,
as a result of any such action, the Trustee, on behalf of the
Certificateholders, could, in the reasonable judgment of the Master Servicer or
the Special
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Servicer, as the case may be, made in accordance with the Servicing Standard, be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA or
any comparable law (a "potentially responsible party"), unless (as evidenced by
an Officers' Certificate to such effect delivered to the Trustee that shall
specify all of the bases for such determination) the Special Servicer has
previously determined in accordance with the Servicing Standard, and based on a
Environmental Assessment of such Mortgaged Property performed by an Independent
Person who regularly conducts Environmental Assessments and performed within six
months prior to any such acquisition of title or other action (a copy of which
Environmental Assessment shall be delivered to the Trustee and the Master
Servicer), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that it would
maximize the recovery to the Certificateholders on a present value
basis (the relevant discounting of anticipated collections that will
be distributable to Certificateholders to be performed at the
related Net Mortgage Rate) to acquire title to or possession of the
Mortgaged Property and to take such actions as are necessary to
bring the Mortgaged Property into compliance therewith in all
material respects; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such
circumstances or conditions are present for which any such action
could reasonably be expected to be required, that it would maximize
the recovery to the Certificateholders on a present value basis (the
relevant discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the related
Net Mortgage Rate) to acquire title to or possession of the
Mortgaged Property and to take such actions with respect to the
affected Mortgaged Property.
The Special Servicer shall undertake, in good faith, reasonable
efforts to make the determination referred to in the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment, as well as
the cost of any remedial, corrective or other further action contemplated by
clause (i) and/or clause (ii) of the preceding paragraph shall be at the expense
of the Trust Fund; and if any such Environmental Assessment so warrants, the
Special Servicer shall perform such additional environmental testing as it deems
necessary and prudent to determine whether the conditions described in clauses
(i) and (ii) of the preceding paragraph have been satisfied, the cost of which
shall be at the expense of the Trust Fund.
(d) If the environmental testing contemplated by Section 3.09(c)
above establishes that any of the conditions set forth in clauses (i) and (ii)
of the first sentence thereof has
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not been satisfied with respect to any Mortgaged Property securing a defaulted
Mortgage Loan and there is no breach of a representation or warranty requiring
repurchase under the Mortgage Loan Purchase Agreement, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trustee, release all or a portion of such
Mortgaged Property from the lien of the related Mortgage; provided that, if such
Mortgage Loan has a then outstanding principal balance of greater than $1
million, then prior to the release of all or a portion of the related Mortgaged
Property from the lien of the related Mortgage, (i) the Special Servicer shall
have notified the Rating Agencies, the Trustee and the Master Servicer in
writing of its intention to so release all or a portion of such Mortgaged
Property and the bases for such intention, (ii) the Trustee shall have notified
the Certificateholders in writing of the Special Servicer's intention to so
release all or a portion of such Mortgaged Property and (iii) the Holders of
Certificates entitled to a majority of the Voting Rights shall have consented to
such release within 30 days of the Trustee's distributing such notice (failure
to respond by the end of such 30-day period being deemed consent).
(e) The Special Servicer shall report to the Master Servicer, the
Controlling Class Representative and the Trustee monthly in writing as to any
actions taken by the Special Servicer with respect to any Mortgaged Property
that represents security for a defaulted Mortgage Loan as to which the
environmental testing contemplated in Section 3.09(c) above has revealed that
any of the conditions set forth in clauses (i) and (ii) of the first sentence
thereof has not been satisfied, in each case until the earlier to occur of
satisfaction of all such conditions and release of the lien of the related
Mortgage on such Mortgaged Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the Mortgage Loan permit such an action and shall, in accordance
with the Servicing Standard, seek such deficiency judgment if it deems
advisable.
(g) The Special Servicer shall, with the reasonable cooperation of
the Master Servicer, prepare and file information returns with respect to
reports of foreclosures and abandonments of any Mortgaged Property and the
information returns relating to any Mortgaged Property required by Sections
6050J and 6050P of the Code and each year deliver to the Trustee an Officers'
Certificate stating that such reports have been filed. Such reports shall be in
form and substance sufficient to meet the reporting requirements imposed by
Sections 6050J and 6050P of the Code.
(h) The Special Servicer shall maintain accurate records, prepared
by a Servicing Officer, of each Final Recovery Determination in respect of any
Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an
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Officers' Certificate delivered to the Trustee, the Controlling Class
Representative and the Master Servicer no later than the third Business Day
following such Final Recovery Determination.
(i) Upon reasonable request of the Master Servicer, the Special
Servicer shall deliver to it and the related Sub-Servicer any other information
and copies of any other documents in its possession with respect to a Specially
Serviced Mortgage Loan or the related Mortgaged Property.
SECTION 3.10. Trustee and Custodian to Cooperate; Release of
Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Master Servicer of a notification that payment in full shall be escrowed in
a manner customary for such purposes, the Master Servicer shall promptly notify
the Trustee in writing, who shall release or cause the related Custodian to
release, by a certification (which certification shall be in the form of a
Request for Release in the form of Exhibit D-1 attached hereto and shall be
accompanied by the form of a release or discharge and shall include a statement
to the effect that all amounts received or to be received in connection with
such payment which are required to be deposited in the Certificate Account
pursuant to Section 3.04(a) have been or will be so deposited) of a Servicing
Officer (a copy of which certification shall be delivered to the Special
Servicer) and shall request delivery to it of the related Mortgage File. Upon
receipt of such certification and request, the Trustee shall release, or cause
any related Custodian to release, the related Mortgage File to the Master
Servicer and shall deliver to the Master Servicer such release or discharge,
duly executed. No expenses incurred in connection with any instrument of
satisfaction or deed of reconveyance shall be chargeable to the Certificate
Account or the Distribution Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), the Trustee,
upon request of the Master Servicer and receipt from the Master Servicer of a
Request for Release in the form of Exhibit D-1 attached hereto signed by a
Servicing Officer thereof, or upon request of the Special Servicer and receipt
from the Special Servicer of a Request for Release in the form of Exhibit D-2
attached hereto, shall release, or cause any related Custodian to release, such
Mortgage File (or portion thereof) to the Master Servicer or the Special
Servicer, as the case may be. Upon return of such Mortgage File (or portion
thereof) to the Trustee or related Custodian, or the delivery to the Trustee of
a certificate of a Servicing Officer of the Special Servicer stating that such
Mortgage Loan was liquidated and that all amounts received or to be received in
connection with such liquidation that are required to be deposited into the
Certificate Account pursuant to Section 3.04(a) have been or will be so
deposited, or that such Mortgage Loan has become an REO Property, a copy of the
Request for Release shall be released by the Trustee or related Custodian to the
Master Servicer or the Special Servicer, as applicable.
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(c) Within seven Business Days (or within such shorter period
(but no less than three Business Days) as execution and delivery can reasonably
be accomplished if the Special Servicer notifies the Trustee of an exigency) of
the Special Servicer's request therefor, the Trustee shall execute and deliver
to the Special Servicer (or the Special Servicer may execute and deliver in the
name of the Trustee based on a limited power of attorney issued in favor of the
Special Servicer pursuant to Section 3.01(b)), in the form supplied to the
Trustee, any court pleadings, requests for trustee's sale or other documents
stated by the Special Servicer to be reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or REO Property or to any
legal action brought to obtain judgment against any Mortgagor on the Mortgage
Note or Mortgage or to obtain a deficiency judgment, or to enforce any other
remedies or rights provided by the Mortgage Note or Mortgage or otherwise
available at law or in equity or to defend any legal action or counterclaim
filed against the Trust Fund, the Master Servicer or the Special Servicer.
Together with such documents or pleadings, the Special Servicer shall deliver to
the Trustee a certificate of a Servicing Officer requesting that such
pleadings or documents be executed by the Trustee and certifying as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the lien
of the Mortgage, except for the termination of such a lien upon completion of
the foreclosure or trustee's sale.
SECTION 3.11. Servicing Compensation.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan (including each Specially Serviced Mortgage Loan) and REO
Loan. As to each such Mortgage Loan and REO Loan, the Master Servicing Fee shall
accrue at the related Master Servicing Fee Rate and on the same principal amount
respecting which the related interest payment due on such Mortgage Loan or
deemed to be due on such REO Loan is computed and calculated on the basis of a
360-day year consisting of twelve 30-day months (or, in the event of a Principal
Prepayment in full or other Liquidation Event with respect to a Mortgage Loan or
REO Loan, on the basis of the actual number of days to elapse from and including
the related Due Date to but excluding the date of such Principal Prepayment or
Liquidation Event in a month consisting of 30 days). The Master Servicing Fee
with respect to any Mortgage Loan or REO Loan shall cease to accrue if a
Liquidation Event occurs in respect thereof. Earned but unpaid Master Servicing
Fees shall be payable monthly (or, with respect to any Semi-Annual Mortgage Loan
semi-annually), on a loan-by-loan basis, from payments of interest on each
Mortgage Loan and REO Revenues allocable as interest on each REO Loan. The
Master Servicer shall be entitled to recover unpaid Master Servicing Fees in
respect of any Mortgage Loan or REO Loan out of that portion of related
Insurance Proceeds or Liquidation Proceeds allocable as recoveries of interest,
to the extent permitted by Section 3.05(a)(iii). The right to receive the Master
Servicing Fee may not be transferred in whole or in part except in connection
with the transfer of all of the Master Servicer's responsibilities and
obligations under this Agreement.
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(b) Additional servicing compensation in the form of (i) late
payment charges, Penalty Interest, assumption application fees, modification
fees for Mortgage Loan modifications made by the Master Servicer pursuant to
Section 3.20(i), charges for beneficiary statements or demands, amounts
collected for checks returned for insufficient funds and any similar fees
(excluding Prepayment Premiums or Yield Maintenance Charges), in each case to
the extent actually paid by a Mortgagor with respect to a Mortgage Loan and
accrued during the time that such Mortgage Loan was not a Specially Serviced
Mortgage Loan, (ii) fifty percent (50%) of any assumption fee to the extent
actually paid by a Mortgagor with respect to any Mortgage Loan, other than a
Specially Serviced Mortgage Loan, and (iii) fifty percent (50%) of any
assumption fee on any assumption of a Specially Serviced Mortgage Loan if the
only Servicing Transfer Event is the transfer of the related Mortgaged Property
by the Mortgagor without the required consents may be retained by the Master
Servicer and are not required to be deposited in the Certificate Account
provided that the Master Servicer's right to receive late payment charges and
Penalty Interest pursuant to clause (i) above shall be limited to the portion of
such items that have not been applied to pay interest on Advances in respect of
the related Mortgage Loan as provided in Sections 3.03(d) and 4.03(d). The
Master Servicer shall also be entitled to additional servicing compensation in
the form of (i) Prepayment Interest Excesses; (ii) interest or other income
earned on deposits in the Certificate Account, the Interest Reserve Account and
the Distribution Account, in accordance with Section 3.06(b) (but only to the
extent of the Net Investment Earnings, if any, with respect to each such account
for each Collection Period), and (iii) to the extent not required to be paid to
any Mortgagor under applicable law or the terms of the related Mortgage Loan,
any interest or other income earned on deposits in the Reserve Accounts and
Servicing Accounts maintained thereby. Notwithstanding the foregoing, the Master
Service shall not be entitled to receive any such additional servicing
compensation concerning the Split Note. The Master Servicer shall be required to
pay out of its own funds all expenses incurred by it in connection with its
servicing activities hereunder (including, without limitation, payment of any
amounts due and owing to any of its Sub-Servicers and the premiums for any
blanket policy insuring against hazard losses pursuant to Section 3.07(b)), if
and to the extent such expenses are not payable directly out of the Certificate
Account, and the Master Servicer shall not be entitled to reimbursement therefor
except as expressly provided in this Agreement. The Master Service shall not
waive or agree to any discount of any portion of assumption fees to which the
Special Services is entitled.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and each REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue at
the Special Servicing Fee Rate and on the same principal amount respecting which
the related interest payment due on such Specially Serviced Mortgage Loan or
deemed to be due on such REO Loan is computed and calculated on the basis of a
360-day year consisting of twelve 30-day months (or, in the event of a
Principal Prepayment in full or other Liquidation Event with respect to a
Mortgage Loan or REO Loan, on the basis of the actual number of days to elapse
from and including the related Due Date to but excluding the date of such
Principal Prepayment or Liquidation Event in a month consisting of 30 days). The
Special
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Servicing Fee with respect to any Specially Serviced Mortgage Loan or
REO Loan shall cease to accrue as of the date a Liquidation Event occurs in
respect thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid
Special Servicing Fees shall be payable monthly out of general collections on
the Mortgage Loans and any REO Properties on deposit in the Certificate Account
pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan, so long as such loan remains a Corrected Mortgage Loan.
As to each Corrected Mortgage Loan, the Workout Fee shall be payable out of, and
shall be calculated by application of the Workout Fee Rate to, each collection
of interest (other than Additional Interest and Penalty Interest) and principal
received on such Mortgage Loan for so long as it remains a Corrected Mortgage
Loan (net of any portion of such collection payable or reimbursable to the
Master Servicer, the Special Servicer or the Trustee for any related unpaid or
unreimbursed Master Servicing Fees and/or Advances) received on such Mortgage
Loan for so long as it remains a Corrected Mortgage Loan. The Workout Fee with
respect to any Corrected Mortgage Loan will cease to be payable if a Servicing
Transfer Event occurs with respect thereto or if the related Mortgaged Property
becomes an REO Property; provided that a new Workout Fee would become payable if
and when such Mortgage Loan again became a Corrected Mortgage Loan. If the
Special Servicer is terminated or resigns in accordance with Section 6.04, it
shall no longer have the right to receive any Workout Fees payable in respect of
Mortgage Loans that became Corrected Mortgage Loans during the period that it
acted as Special Servicer.
In addition, with respect to each Specially Serviced Mortgage Loan
and REO Loan (or Qualified Substitute Mortgage Loan substituted in lieu
thereof), the Special Servicer shall be entitled to the Principal Recovery Fee
payable out of, and calculated by application of the Principal Recovery Fee Rate
to, all amounts (in respect of whole or partial payments of Liquidation
Proceeds) received in respect of such Mortgage Loan and allocable as a recovery
of principal, interest and expenses in accordance with Section 3.02(b); provided
that no Principal Recovery Fee shall be payable in connection with, or out of
(i) Insurance Proceeds and (ii) Liquidation Proceeds resulting from, the
purchase of any Mortgage Loan or REO Property by the applicable Mortgage Loan
Seller pursuant to the respective Mortgage Loan Purchase Agreement, by the
Majority Subordinate Certificateholder pursuant to Section 3.18(b), by the
Master Servicer or the Special Servicer pursuant to Section 3.18(c) or by the
Depositor, the Master Servicer, the Special Servicer or the Majority Subordinate
Certificateholder pursuant to Section 9.01; and provided further that no
Principal Recovery Fee shall be payable to the extent a Workout Fee is payable
concerning the Liquidation Proceeds.
The Special Servicer's right to receive the Special Servicing Fee,
the Workout Fee and the Principal Recovery Fee may not be transferred in whole
or in part except in connection with the transfer of all of the Special
Servicer's responsibilities and obligations under Sections 6.02, 6.04 and 6.09.
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(d) Additional servicing compensation in the form of (i) late
payment charges, Penalty Interest and assumption application fees received on or
with respect to Specially Serviced Mortgage Loans actually collected that
accrued during the time that the related Mortgage Loan was a Specially Serviced
Mortgage Loans, (ii) one-hundred percent (100%) (or fifty percent (50%) if
Section 3.11(b)(iii) applies) of assumption fees collected on all Specially
Serviced Mortgage Loans, (iii) fifty percent (50%) of assumption fees collected
on any Mortgage Loan other than a Specially Serviced Mortgage Loan and (iv)
modification fees collected on all Mortgage Loans (other than modifications made
by the Master Servicer pursuant to Section 3.20(i)), in each case to the extent
actually paid by the related Mortgagor, shall be retained by the Special
Servicer or promptly paid to the Special Servicer by the Master Servicer and
shall not be required to be deposited in the Certificate Account provided that
the Special Servicer's right to receive late payment charges and Penalty
Interest pursuant to clause (i) above shall be limited to the portion of such
items that have not been applied to pay interest on Advances in respect of the
related Mortgage Loan as provided in Sections 3.03(d) and 4.03(d). The Special
Servicer shall also be entitled to additional servicing compensation in the form
of: (i) interest or other income earned on deposits in the REO Account, if
established, in accordance with Section 3.06(b) (but only to the extent of the
Net Investment Earnings, if any, with respect to the REO Account for each
Collection Period); and (ii) to the extent not required to be paid to any
Mortgagor under applicable law, any interest or other income earned on deposits
in the Servicing Accounts maintained by the Special Servicer. The Special
Servicer shall be required to pay out of its own funds all general and
administrative expenses incurred by it in connection with its servicing
activities hereunder, and the Special Servicer shall not be entitled to
reimbursement therefor except as expressly provided in Section 3.05(a) if and to
the extent such expenses are not payable directly out of the Certificate Account
or the REO Account.
SECTION 3.12. Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable after a
related Mortgage Loan (i) becomes a Specially Serviced Mortgage Loan or (ii) the
related Debt Service Coverage Ratio set forth in the Comparative Financial
Status Report is below 1.0x, provided that such expense shall be reimbursable as
an Additional Trust Fund Expense. Each of the Master Servicer for each Mortgage
Loan other than a Specially Serviced Mortgage Loan or REO Loan shall at its
expense and the Special Servicer for each Specially Serviced Mortgage Loan and
REO Loan at the expense of the Trust Fund, shall perform or cause to be
performed an inspection of all the Mortgaged Properties at least once per
calendar year (or, in the case of Mortgage Loans (other than Specially Serviced
Mortgage Loans) with a then current principal balance of less than (i)
$2,000,000 and (ii) 2% of the then current principal balance of all Mortgage
Loans, every other calendar year) beginning in 2000; provided that if, with
respect to any Credit Lease Loan, (i) the applicable Tenant or obligor under the
Guaranty has a Standard & Poor's rating of less than BB-, the Special Servicer
shall inspect the related Mortgaged Property annually and (ii) Standard & Poor's
or DCR
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has downgraded such Tenant or obligor by one or more rating increments (i.e., AA
to A, or BBB- to BB-) or withdrawn its rating of the long-term senior unsecured
debt or similar obligations of the applicable Tenant or obligor under the
Guaranty, the Special Servicer shall promptly inspect the related Mortgaged
Property and annually thereafter until the above-described ratings are again at
least "BB-" (or the equivalent) by Standard & Poor's or DCR, as the case may be.
The Special Servicer and the Master Servicer shall each prepare (and, in the
case of the Special Servicer, shall deliver to the Master Servicer) a written
report of each such inspection performed by it that sets forth in detail the
condition of the Mortgaged Property and that specifies the existence of: (i) any
sale, transfer or abandonment of the Mortgaged Property of which it is aware,
(ii) any change in the condition or value of the Mortgaged Property that it, in
its reasonable judgment, considers material, or (iii) any visible waste
committed on the Mortgaged Property. The Master Servicer shall deliver such
reports to the Trustee within 45 days of the related inspection and the Trustee
shall, subject to Section 3.15, make copies of all such inspection reports
available for review by Certificateholders and Certificate Owners during normal
business hours at the offices of the Trustee at all times after Trustee's
receipt thereof. Upon written request and at the expense of the requesting
party, the Trustee shall deliver copies of any such inspection reports to
Certificateholders and Certificate Owners. The Special Servicer shall have the
right to inspect or cause to be inspected (at its own expense) every calendar
year any Mortgaged Property related to a loan that is not a Specially Serviced
Mortgage Loan, provided that the Special Servicer obtains the approval of the
Master Servicer prior to such inspection, and provides a copy of such inspection
to the Master Servicer; and provided further that the Master Servicer and the
Special Servicer shall not both inspect a Mortgage Loan that is not a Specially
Serviced Mortgage Loan in the same calendar year. If the Special Servicer
performs such inspection such inspection shall satisfy the Master Servicer's
inspection obligations pursuant to this paragraph (a).
With respect to site inspection information, the Master Servicer
shall make such inquiry of any Mortgagor under any related Mortgage Loan as the
Special Servicer may reasonably request.
The Special Servicer will, promptly after a Mortgage Loan becomes a
Specially Serviced Mortgage Loan, give written notice to the Master Servicer,
the Controlling Class Representative and the Trustee which will include an
explanation as to the reasons such Mortgage Loan became a Specially Serviced
Mortgage Loan and the Special Servicer's plan for servicing such Mortgage Loan,
a copy of which notice will be provided by the Trustee to each Rating Agency and
upon request to each Certificateholder and the Depositor.
(b) Not later than 2:00 p.m. (New York City time) on the second
Business Day prior to each Determination Date, the Special Servicer shall
deliver or cause to be delivered to the Master Servicer the following reports
with respect to the Specially Serviced Mortgage Loans and any REO Properties
providing the required information as of the end of the preceding calendar
month: (i) a CMSA Property File Report; and (ii) a Comparative Financial Status
Report. Not later than 5:00 p.m. (New York City time) on the first Business Day
following each Determination
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Date, the Special Servicer shall deliver or cause to be delivered to the Master
Servicer the following reports with respect to the Mortgage Loans (and, if
applicable, the related REO Properties) (or, as to clause (iv) below, only with
respect to Specially Serviced Mortgage Loans) providing the required information
as of such Determination Date: (i) a Historical Liquidation Report; (ii) a
Historical Loan Modification Report; (iii) an REO Status Report; and (iv) a
Delinquent Loan Status Report.
(c) Not later than 4:00 p.m. (New York City time) on the third
Business Day after each Determination Date, the Master Servicer shall deliver or
cause to be delivered to the Trustee (in electronic format acceptable to the
Master Servicer and the Trustee) (A) the most recent Historical Loan
Modification Report, Historical Liquidation Report and REO Status Report
received from the Special Servicer pursuant to Section 3.12(b); (B) a CMSA
Property File Report and a Comparative Financial Status Report, each with the
required information as of the end of the preceding calendar month (in each case
combining the reports prepared by the Special Servicer and the Master Servicer);
(C) a Delinquent Loan Status Report, with the required information as of such
Determination Date (in each case combining the reports prepared by the Special
Servicer and the Master Servicer); and (D) a Watch List Report with the required
information as of such Determination Date.
(d) The Special Servicer will deliver to the Master Servicer the
reports set forth in Section 3.12(b) and this Section 3.12(d) and the Master
Servicer shall deliver to the Trustee the reports set forth in Section 3.12 in
an electronic format reasonably acceptable to the Special Servicer and the
Master Servicer with respect to the reports set forth in Section 3.12(b) and
this Section 3.12(d), and the Master Servicer and the Trustee with respect to
the reports set forth in Section 3.12(c). The Master Servicer may, absent
manifest error, conclusively rely on the reports to be provided by the Special
Servicer pursuant to Section 3.12(b) and this Section 3.12(d). The Trustee may,
absent manifest error, conclusively rely on the CMSA Loan File Report to be
provided by the Master Servicer pursuant to Section 4.02(b). In the case of
information or reports to be furnished by the Master Servicer to the Trustee
pursuant to this Section 3.12, to the extent that such information is based on
reports to be provided by the Special Servicer pursuant to Section 3.12(b) and
this Section 3.12(d) and, to the extent that such reports are to be prepared and
delivered by the Special Servicer pursuant to Section 3.12(b) and this Section
3.12(d), the Master Servicer shall have no obligation to provide such
information or reports until it has received such information or reports from
the Special Servicer and the Master Servicer shall not be in default hereunder
due to a delay in providing the reports required by this Section 3.12 to the
extent caused by the Special Servicer's failure to timely provide any report
required under Section 3.12(b) and this Section 3.12(d) of this Agreement.
The Special Servicer, in the case of any Specially Serviced Mortgage
Loan and REO Loan, and the Master Servicer, in the case of all other Mortgage
Loans shall each consistent with the Servicing Standard, endeavor to obtain
quarterly and annual operating statements and rent rolls with respect to the
related Mortgage Loans and REO Properties, which efforts shall include
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in the case of Mortgage Loans, a letter sent to the related Mortgagor each
quarter (followed up with telephone calls) requesting such quarterly and annual
operating statements and rent rolls until they are received to the extent such
action is consistent with applicable law.
The Special Servicer shall promptly following receipt, deliver
copies of the operating statements and rent rolls received or obtained by it to
the Master Servicer, and the Master Servicer shall deliver copies of the
operating statements and rent rolls received or obtained by it to the Rating
Agencies, the Trustee, the Special Servicer or the Controlling Class
Representative in each case (other than the Rating Agencies) upon request.
Within 30 days after receipt by the Master Servicer or the Special
Servicer of any annual operating statements with respect to any Mortgaged
Property or REO Property, as applicable, each of the Master Servicer and the
Special Servicer shall prepare or update and, with respect to any NOI Adjustment
Worksheet prepared or updated by the Special Servicer, forward to the Master
Servicer, an NOI Adjustment Worksheet for such Mortgaged Property or REO
Property (with the annual operating statements attached thereto as an exhibit).
The Special Servicer with respect to each Specially Serviced
Mortgage Loan and REO Loan, and the Master Servicer with respect to each other
Mortgage Loan, shall each prepare and maintain and forward to each other one
Operating Statement Analysis for each Mortgaged Property and REO Property, as
applicable. The Operating Statement Analysis for each Mortgaged Property and REO
Property is to be updated by each of the Master Servicer and the Special
Servicer, as applicable, within thirty days after its respective receipt of
updated operating statements for such Mortgaged Property or REO Property, as the
case may be, but in no event more frequently than annually by June 30th of each
year. The Master Servicer and the Special Servicer shall each use the
"Normalized" column from the NOI Adjustment Worksheet for any Mortgaged Property
or REO Property, as the case may be, to update the corresponding Operating
Statement Analysis and shall use any operating statements received with respect
to any Mortgaged Property or REO property, as the case may be, to prepare the
NOI Adjustment Worksheet for such property. Copies of Operating Statement
Analyses and NOI Adjustment Worksheets are to be made available by the Master
Servicer to the Rating Agencies, the Trustee, the Special Servicer or the
Controlling Class Representative in each case (other than the Rating Agencies)
upon request.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver
to the Trustee, the Underwriters, and the Rating Agencies, and, in the case of
the Special Servicer, to the Master Servicer, on or before April 30 of each
year, beginning, in the case of the Special Servicer April 30, 2000, and in the
case of the Master Servicer April 30, 2001 an Officers' Certificate stating, as
to each signer thereof, that (i) a review of the activities of the Master
Servicer or the Special Servicer, as the case may be, during the preceding
calendar year and of its performance
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under this Agreement has been made under such officer's supervision, (ii) to the
best of such officer's knowledge, based on such review, the Master Servicer or
the Special Servicer, as the case may be, has fulfilled all of its obligations
under this Agreement in all material respects throughout such year, or, if there
has been a default in the fulfillment of any such obligation, specifying each
such default known to such officer and the nature and status thereof and (iii)
the Master Servicer or the Special Servicer, as the case may be, has received no
notice regarding qualification, or challenging the status, of REMIC I, REMIC II
or REMIC III as a REMIC under the REMIC Provisions or of the Grantor Trust as a
"Grantor Trust" for income tax purposes under the Grantor Trust Provisions from
the Internal Revenue Service or any other governmental agency or body or, if it
has received any such notice, specifying the details thereof. The Master
Servicer and Special Servicer shall deliver a copy of such Officer's Certificate
to the Depositor.
SECTION 3.14. Reports by Independent Public Accountants.
On or before April 30 of each year, beginning April 30, 2000 in the
case of the Special Servicer, and beginning April 30, 2001 in the case of the
Master Servicer, at its expense shall cause a firm of Independent public
accountants (which may also render other services to the Master Servicer or the
Special Servicer) that is a member of the American Institute of Certified Public
Accountants to furnish a statement to the Trustee, Underwriters, Rating
Agencies, Depositor and, in the case of the Special Servicer, to the Master
Servicer to the effect that such firm has examined the servicing operations of
the Master Servicer or the Special Servicer, as the case may be, for the
previous calendar year (except that the first such report shall cover the period
from the Closing Date through December 31, 1999) and that, on the basis of such
examination, conducted substantially in compliance with USAP, such firm confirms
that the Master Servicer or the Special Servicer, as the case may be, complied
with the minimum servicing standards identified in USAP, in all material
respects, except for such significant exceptions or errors in records that, in
the opinion of such firm, the USAP requires it to report. In rendering such
statement, such firm may rely, as to matters relating to direct servicing of
mortgage loans by Sub-Servicers, upon comparable statements for examinations
conducted substantially in compliance with the Uniform Single Audit Program for
Mortgage Bankers (rendered within one year of such statement) of independent
public accountants with respect to the related Sub-Servicer.
SECTION 3.15. Access to Certain Information.
(a) Upon ten days prior written notice, the Master Servicer (with
respect to the items in clauses (a), (c), (d), (e), (f), (h) and (i) below), the
Special Servicer (with respect to the items in clauses (d), (e), (f), (g), (h)
and (i) below) and the Trustee (with respect to the items in clause (b) and (i)
below and to the extent any other items are in its possession) shall make
available at their respective offices primarily responsible for administration
of the Mortgage Loans (or in the case of Norwest Bank Minnesota, National
Association, at its Corporate Trust Office, except with respect to documents
which constitute part of the Mortgage Files, which will be maintained at its
offices in Minnesota), during normal business hours, or send to the requesting
party such
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party having been certified to the Trustee or the Master Servicer as applicable
in accordance with (a) and (b) in the following paragraph, as appropriate, at
the expense of such requesting party (unless otherwise provided in this
Agreement), for review by any Certificate Owner or Certificateholder or any
person identified by a Certificate Owner or Certificateholder or its designated
agent to the Trustee, the Master Servicer or the Special Servicer, as the case
may be, as a prospective transferee of any Certificate or interest therein, the
Trustee, the Rating Agencies, the Underwriters and anyone specified thereby and
the Depositor originals or copies of the following items: (a) this Agreement and
any amendments thereto, (b) all Distribution Date Statements delivered to
holders of the relevant Class of Certificates since the Closing Date and all
reports, statements and analyses delivered by the Master Servicer since the
Closing Date pursuant to Section 3.12(c), (c) all Officers' Certificates
delivered by the Master Servicer or the Special Servicer since the Closing Date
pursuant to Section 3.13, (d) all accountants' reports delivered to the Master
Servicer in respect of itself or the Special Servicer since the Closing Date as
described in Section 3.14, (e) the most recent property inspection report
prepared by or on behalf of the Master Servicer in respect of each Mortgaged
Property and any Environmental Assessments prepared pursuant to Section 3.09,
(f) the most recent Mortgaged Property annual operating statements and rent
roll, if any, collected by or on behalf of the Master Servicer, (g) any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into by the Special Servicer and the Asset Status Report prepared pursuant to
Section 3.21(d), (h) the Servicing File relating to each Mortgage Loan and (i)
any and all Officers' Certificates and other evidence delivered by the Master
Servicer or the Special Servicer, as the case may be, to support its
determination that any Advance was or, if made, would be a Nonrecoverable
Advance pursuant to Section 3.20(d) including appraisals affixed thereto and any
Required Appraisal prepared pursuant to Section 3.09(a). Copies of any and all
of the foregoing items will be available from the Master Servicer or the Special
Servicer, as the case may be, upon request and shall be provided to any of the
Rating Agencies at no cost pursuant to their reasonable requests.
In connection with providing access to or copies of the items
described in the preceding paragraph pursuant to this Section 3.15, the Trustee
or the Master Servicer, as applicable, shall require: (a) in the case of
Certificate Owners, a confirmation executed by the requesting Person
substantially in the form of Exhibit X-1 hereto (or such other form as may be
reasonably acceptable to the Trustee or the Master Servicer, as applicable)
generally to the effect that such Person is a beneficial holder of Book-Entry
Certificates and, subject to the last sentence of this paragraph, will keep such
information confidential (except that such Certificate Owner may provide such
information to any other Person that holds or is contemplating the purchase of
any Certificate or interest therein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential); and (b) in the case of a prospective
purchaser of a Certificate or an interest therein, confirmation executed by the
requesting Person substantially in the form of Exhibit X-2 hereto (or such other
form as may be reasonably acceptable to the Trustee or the Master Servicer, as
applicable) generally to the effect that such Person is a prospective purchaser
of a Certificate or an interest therein, is requesting the information for use
in evaluating a possible investment in Certificates
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and, subject to the last sentence of this paragraph, will otherwise keep such
information confidential. The Holders of the Certificates, by their acceptance
thereof, will be deemed to have agreed, subject to the last sentence of this
paragraph, to keep such information confidential (except that any Holder may
provide such information obtained by it to any other Person that holds or is
contemplating the purchase of any Certificate or interest therein, provided that
such other Person confirms in writing such ownership interest or prospective
ownership interest and agrees to keep such information confidential).
Notwithstanding the foregoing, no Certificateholder, Certificate Owner or
prospective Certificateholder or Certificate Owner shall be obligated to keep
confidential any information received from the Trustee or the Master Servicer,
as applicable, pursuant to this Section 3.15 that has previously been made
available without a password via the Trustee's or the Master Servicer's, as
applicable, Internet Website or has previously been filed with the Commission,
and the Trustee or the Master Servicer, as applicable, shall not require either
of the certifications contemplated by the second preceding sentence in
connection with providing any information pursuant to this Section 3.15 that has
previously been made available without a password via the Trustee's Internet
Website or has previously been filed with the Commission.
Each of the Master Servicer and the Special Servicer shall afford to
the Trustee, the Rating Agencies and the Depositor, and to the OTS, the FDIC,
the Federal Reserve Board and any other banking or insurance regulatory
authority that may exercise authority over any Certificateholder, access to any
records regarding the Mortgage Loans and the servicing thereof within its
control, except to the extent it is prohibited from doing so by applicable law
or contract or to the extent such information is subject to a privilege under
applicable law to be asserted on behalf of the Certificateholders. Such access
shall be afforded only upon reasonable prior written request and during normal
business hours at the offices of the Master Servicer or the Special Servicer, as
the case may be, designated by it.
The Trustee, the Master Servicer, the Special Servicer and the
Underwriters may require payment from the Certificateholder or Certificate Owner
of a sum sufficient to cover the reasonable costs and expenses of providing any
such information or access pursuant to this Section 3.15 to, or at the request
of, the Certificateholders or Certificate Owners or prospective transferees,
including, without limitation, copy charges and, in the case of
Certificateholders or Certificate Owners requiring on site review in excess of
three Business Days, reasonable fees for employee time and for space.
(b) The Trustee shall, and the Master Servicer may but is not
required to, make available each month to any interested party (i) the
Distribution Date Statement via their respective Internet Website and
fax-on-demand service and (ii) as a convenience for interested parties, the
Prospectus, the Prospectus Supplement and this Agreement on their respective
Internet Website. In addition, the Trustee shall, and the Master Servicer may
but is not required to, make available each month the Unrestricted Servicer
Reports, the CMSA Loan File Report, the CMSA loan setup file, the CMSA Bond File
Report and the CMSA Collateral File Report to any interested party on their
respective Internet Website. The Trustee shall make available each month, (i)
the Restricted
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Servicer Reports, and (ii) the CMSA Property File Report to any Privileged
Person via the Trustee's Internet Website with the use of a password provided by
the Trustee to such Privileged Person upon receipt by the Trustee from such
Person of a certification in the form of Exhibit X-1; provided that the Rating
Agencies, the Depositor, the parties hereto and the Underwriters will not need
to provide such certification to receive a password from the Trustee. The Master
Servicer may, but is not required to, make available each month to any
interested party via its Internet Website the Delinquent Loan Status Report, the
Historical Loan Modification Report, the Historical Liquidation Report, the REO
Status Report, the Watch List Report, the Comparative Financial Status Report,
the CMSA loan setup file, the CMSA Loan File Report and the CMSA Property File
Report. In connection with providing access to the Trustee's Internet Website or
the Master Servicer's Internet Website, the Trustee or the Master Servicer, as
applicable, may require registration and the acceptance of a disclaimer.
If three or more Holders or the Controlling Class Representative
(hereinafter referred to as "Applicants" with a single Person which (together
with its Affiliates) is the Holder of more than one Class of Certificates being
viewed as a single Applicant for these purposes) apply in writing to the
Trustee, and such application states that the Applicants' desire to communicate
with other Holders with respect to their rights under this Agreement or under
the Certificates and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, send, at the Applicants' expense,
the written communication proffered by the Applicants to all Certificateholders
at their addresses as they appear in the Certificate Register.
SECTION 3.16. Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee on behalf of
the Certificateholders. The Special Servicer, on behalf of the Trust Fund, shall
sell any REO Property by the end of the third year following the calendar year
in which REMIC I acquires ownership of such REO Property for purposes of Section
860G(a)(8) of the Code, unless the Special Servicer either (i) applies for, more
than sixty days prior to the end of such third succeeding year, and is granted
an extension of time (an "REO Extension") by the Internal Revenue Service to
sell such REO Property or (ii) obtains for the Trustee an Opinion of Counsel,
addressed to the Trustee, the Special Servicer and the Master Servicer, to the
effect that the holding by REMIC I of such REO Property subsequent to the end of
such third succeeding year will not result in the imposition of taxes on
"prohibited transactions" (as defined in Section 860F of the Code) of any of
REMIC I, REMIC II or REMIC III or cause any of REMIC I, REMIC II or REMIC III to
fail to qualify as a REMIC at any time that any Certificates are outstanding. If
the Special Servicer is granted the REO Extension contemplated by clause (i) of
the immediately preceding sentence or obtains the Opinion of Counsel
contemplated by clause (ii) of the immediately preceding sentence, the Special
Servicer shall sell such REO Property within such extended period as is
permitted by such REO Extension or such Opinion of Counsel, as the case may be.
Any expense incurred by the Special Servicer in
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connection with its obtaining the REO Extension contemplated by clause (i) of
the second preceding sentence or its obtaining the Opinion of Counsel
contemplated by clause (ii) of the second preceding sentence, shall first be
payable from the related REO Account to the extent of available funds and then
be a Servicing Advance by the Master Servicer.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more accounts
(collectively, the "REO Account"), held on behalf of the Trustee in trust for
the benefit of the Certificateholders, for the retention of revenues and other
proceeds derived from each REO Property. The REO Account shall be an Eligible
Account. The Special Servicer shall deposit, or cause to be deposited, in the
REO Account, upon receipt, all REO Revenues, Insurance Proceeds and Liquidation
Proceeds received in respect of an REO Property within 2 Business Days of
receipt. Funds in the REO Account may be invested in Permitted Investments in
accordance with Section 3.06. The Special Servicer shall be entitled to make
withdrawals from the REO Account to pay itself, as additional servicing
compensation in accordance with Section 3.11(d), interest and investment income
earned in respect of amounts held in the REO Account as provided in Section
3.06(b) (but only to the extent of the Net Investment Earnings with respect to
the REO Account for any Collection Period). The Special Servicer shall give
written notice to the Trustee and the Master Servicer of the location of the REO
Account when first established and of the new location of the REO Account prior
to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, maintenance and disposition of
any REO Property, but only to the extent of amounts on deposit in the REO
Account relating to such REO Property (including any monthly reserve or escrow
amounts necessary to accumulate sufficient funds for taxes, insurance and
anticipated capital expenditures (the "Impound Reserve")). On each Determination
Date, the Special Servicer shall withdraw from the REO Account and deposit into
the Certificate Account or deliver to the Master Servicer or such other Person
as may be directed by the Master Servicer (which shall deposit such amounts into
the Certificate Account) the aggregate of all amounts received in respect of
each REO Property during the most recently ended Collection Period, net of any
withdrawals made out of such amounts pursuant to the preceding sentence;
provided that in addition to the Impound Reserve the Special Servicer may retain
in the REO Account such portion of proceeds and collections as may be necessary
to maintain a reserve of sufficient funds for the proper operation, management
and maintenance of the related REO Property (including without limitation the
creation of a reasonable reserve for repairs, replacements and other related
expenses).
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
The Special Servicer shall provide the
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Master Servicer any information with respect to the REO Account as is reasonably
requested by the Master Servicer.
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition of title to a Mortgaged Property, the
Special Servicer shall review the operation of such Mortgaged Property and
determine the nature of the income that would be derived from such property if
it were acquired by the Trust Fund. If the Special Servicer determines from such
review that:
(i) None of the income from Directly Operating such Mortgaged
Property would be subject to tax as "net income from foreclosure
property" within the meaning of the REMIC Provisions or would be
subject to the tax imposed on "prohibited transactions" under
Section 860F of the Code (either such tax referred to herein as an
"REO Tax"), such Mortgaged Property may be Directly Operated by the
Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO
Property could result in income from such property that would be
subject to an REO Tax, but that a lease of such property to another
party to operate such property, or the performance of some services
by an Independent Contractor with respect to such property, or
another method of operating such property would not result in income
subject to an REO Tax, then the Special Servicer may (provided, that
in the good faith and reasonable judgment of the Special Servicer,
it is commercially feasible) acquire such Mortgaged Property as REO
Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO
Tax and that no commercially feasible means exists to operate such
property as REO Property without the Trust Fund incurring or
possibly incurring an REO Tax on income from such property, the
Special Servicer shall deliver to the REMIC Administrator, in
writing, a proposed plan (the "Proposed Plan") to manage such
property as REO Property. Such plan shall include potential sources
of income, and to the extent commercially feasible, estimates of the
amount of income from each such source. Within a reasonable period
of time after receipt of such plan, the REMIC Administrator shall
consult with the Special Servicer and shall advise the Special
Servicer of the REMIC Administrator's federal income tax reporting
position with respect to the various sources of income that the
Trust Fund would derive under the Proposed Plan. In addition, the
REMIC Administrator shall (to the extent reasonably possible) advise
the Special Servicer of the estimated amount of taxes that the Trust
Fund would be required to pay with respect to each such source of
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income. After receiving the information described in the two
preceding sentences from the REMIC Administrator, the Special
Servicer shall either (A) implement the Proposed Plan (after
acquiring the respective Mortgaged Property as REO Property) or (B)
manage and operate such property in a manner that would not result
in the imposition of an REO Tax on the income derived from such
property. All of the REMIC Administrator's expenses (including any
fees and expenses of counsel or other experts reasonably retained by
it) incurred pursuant to this section shall be reimbursed to it from
the Trust Fund in accordance with Section 10.01(f).
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall be based on the Servicing Standard and in any case on
the good faith and reasonable judgment of the Special Servicer as to which means
would be in the best interest of the Certificateholders by maximizing (to the
extent commercially feasible and consistent with Section 3.17(b)) the net
after-tax REO Revenues received by the Trust Fund with respect to such
property and, to the extent consistent with the foregoing, in the same manner as
would prudent mortgage loan servicers and asset managers operating acquired
mortgaged property comparable to the respective Mortgaged Property. Both the
Special Servicer and the REMIC Administrator may, at the expense of the Trust
Fund payable pursuant to Section 3.05(a)(xiii) consult with counsel.
(b) If title to any REO Property is acquired, the Special Servicer
shall manage, conserve, protect and operate such REO Property for the benefit of
the Certificateholders solely for the purpose of its prompt disposition and sale
in a manner that does not and will not cause such REO Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or, except as contemplated by Section 3.17(a), either result in the
receipt by REMIC I, REMIC II or REMIC III of any "income from non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an
Adverse REMIC Event. Subject to the foregoing, however, the Special Servicer
shall have full power and authority to do any and all things in connection
therewith as are consistent with the Servicing Standard and, consistent
therewith, shall withdraw from the REO Account, to the extent of amounts on
deposit therein with respect to any REO Property, funds necessary for the proper
operation, management, maintenance and disposition of such REO Property,
including without limitation:
(i) all insurance premiums due and payable in respect of such
REO Property;
(ii) all real estate taxes and assessments in respect of such
REO Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
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(iv) all costs and expenses necessary to maintain, lease,
sell, protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in the preceding
sentence with respect to such REO Property, the Master Servicer, subject to the
second paragraph of Section 3.03(c), shall make Servicing Advances in such
amounts as are necessary for such purposes unless (as evidenced by an Officers'
Certificate delivered to the Trustee and the Master Servicer) the Master
Servicer would not make such advances if the Master Servicer owned such REO
Property or the Master Servicer determines, in accordance with the Servicing
Standard, that such payment would be a Nonrecoverable Advance; provided,
however, that the Master Servicer may make any such Servicing Advance without
regard to recoverability if it is a necessary fee or expense incurred in
connection with the defense or prosecution of legal proceedings.
(c) The Special Servicer may contract with any Independent
Contractor for the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at
arm's length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust Fund) shall be reasonable and customary in
consideration of the nature and locality of the REO Property;
(iii) except as permitted under Section 3.17(a), any such
contract shall require, or shall be administered to require, that
the Independent Contractor, in a timely manner, (A) pay all costs
and expenses incurred in connection with the operation and
management of such REO Property, including, without limitation,
those listed in Section 3.17(b) above, and (B) except to the extent
that such revenues are derived from any services rendered by the
Independent Contractor to tenants of the REO Property that are not
customarily furnished or rendered in connection with the rental of
real property (within the meaning of Section 1.856-4(b)(5) of the
Treasury Regulations or any successor provision), remit all related
revenues collected (net of its fees and such costs and expenses) to
the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating
to any such contract or to actions taken through any such
Independent Contractor shall be deemed to relieve the Special
Servicer of any of its duties and obligations hereunder with respect
to the operation and management of any such REO Property; and
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(v) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties
and obligations in connection with the operation and management of
such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. No agreement entered into pursuant to this
Section 3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of
Section 3.22.
SECTION 3.18. Sale of Mortgage Loans and REO Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO
Property only on the terms and subject to the conditions set forth in this
Section 3.18 or as otherwise expressly provided in or contemplated by Sections
2.03(a) and 9.01.
(b) Subject to Section 2.03(a), if the Special Servicer has
determined in good faith, and after making reasonable efforts to specially
service such Defaulted Mortgage Loan, that any Defaulted Mortgage Loan will
become subject to foreclosure proceedings, the Special Servicer shall promptly
so notify in writing the Trustee and the Master Servicer, and the Trustee,
following its receipt of such notice, shall, within 10 days after receipt of
such notice, notify the Majority Subordinate Certificateholder. The Majority
Subordinate Certificateholder may at its option purchase from the Trust Fund, at
a price equal to the Purchase Price, any such Mortgage Loan. The Purchase Price
for any Mortgage Loan purchased under this paragraph (b) shall be deposited into
the Certificate Account, and the Custodian, upon receipt of an Officers'
Certificate from the Master Servicer to the effect that such deposit has been
made, shall release or cause to be released to the Majority Subordinate
Certificateholder the related Mortgage File, and shall execute and deliver such
instruments of transfer or assignment, in each case without recourse, as shall
be provided to it and are reasonably necessary to vest in the Majority
Subordinate Certificateholder ownership of such Mortgage Loan. In connection
with any such purchase, the Special Servicer shall deliver the related Servicing
File to the Majority Subordinate Certificateholder.
(c) If the Majority Subordinate Certificateholder has not purchased
any Defaulted Mortgage Loan within 30 days of its having received notice in
respect thereof pursuant to Section 3.18(b) above, either the Master Servicer or
the Special Servicer (with preference given to the Special Servicer) may at its
option purchase such Mortgage Loan from the Trust Fund, at a price equal to the
Purchase Price. The Purchase Price for any such Mortgage Loan purchased under
this paragraph (c) shall be deposited into the Certificate Account, and the
Custodian, upon receipt of an Officers' Certificate from the Master Servicer to
the effect that such deposit has been made, shall release or cause to be
released to the Master Servicer or the Special Servicer, as applicable, the
related Mortgage File, and shall execute and deliver such instruments of
transfer
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or assignment, in each case without recourse, as shall be provided to it and are
reasonably necessary to vest in the Master Servicer or the Special Servicer, as
applicable, the ownership of such Mortgage Loan. In connection with any such
purchase by the Master Servicer, the Special Servicer shall deliver the related
Servicing File to the Master Servicer.
(d) Subject to Section 6.11, the Special Servicer may offer to sell
any Defaulted Mortgage Loan not otherwise purchased pursuant to Sections 3.18(b)
and 3.18(c) above, if and when the Special Servicer determines, consistent with
the Servicing Standard, that such a sale would be in the best economic interests
of the Trust Fund. Such offer shall be made in a commercially reasonable manner
(which, for purposes hereof, includes an offer to sell without representation or
warranty other than customary warranties of title and condition, if liability
for breach thereof is limited to recourse against the Trust Fund) for a period
of not less than 10 days. Unless the Special Servicer determines that acceptance
of any bid would not be in the best economic interests of the
Certificateholders, the Special Servicer shall accept the highest cash bid
received from any Person that constitutes a fair price for such Mortgage Loan.
In the absence of any bid determined as provided below to be fair, the Special
Servicer shall proceed with respect to such Defaulted Mortgage Loan in
accordance with Section 3.09.
Subject to Section 6.11, the Special Servicer shall use its best
efforts to solicit bids for each REO Property in such manner as will be
reasonably likely to realize a fair price within the time period provided for by
Section 3.16(a). The Special Servicer shall accept the first (and, if multiple
bids are received contemporaneously or subsequently, the highest, provided that
the Special Servicer is not obligated to the first bidder) cash bid received
from any Person that constitutes a fair price for such REO Property. If the
Special Servicer reasonably believes that it will be unable to realize a fair
price for any REO Property within the time constraints imposed by Section
3.16(a), the Special Servicer shall dispose of such REO Property upon such terms
and conditions as the Special Servicer shall deem necessary and desirable to
maximize the recovery thereon under the circumstances and, in connection
therewith, shall accept the highest outstanding cash bid, regardless of from
whom received.
The Special Servicer shall give the Trustee and the Master
Servicer not less than five Business Days' prior written notice of its intention
to sell any Mortgage Loan or REO Property pursuant to this Section 3.18(d). No
Interested Person shall be obligated to submit a bid to purchase any such
Mortgage Loan or REO Property, and notwithstanding anything to the contrary
herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may bid for or purchase any Defaulted Mortgage Loan or any REO
Property pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
3.18(d), shall be determined by the Special Servicer (except as otherwise
provided below in this Section 3.18(e)). In determining whether any bid received
from an Interested Person represents a fair price for any such Mortgage Loan or
REO Property, the Special Servicer shall be supplied with and may rely
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on a narrative appraisal prepared at the expense of the Trust Fund by an
Independent Appraiser, retained by the Special Servicer. The Special Servicer
may rely on a certification of any bidder to the effect that such bidder is not
an Interested Person. Such appraiser shall be selected by the Special Servicer
if the Special Servicer is not bidding with respect to a Defaulted Mortgage Loan
or REO Property and shall be selected by the Master Servicer if the Special
Servicer is bidding. The Master Servicer shall not bid with respect to a
Defaulted Mortgage Loan or REO Property if the Special Servicer has informed it
that the Special Servicer intends to submit a bid. Where any Interested Person
is among those bidding with respect to a Mortgage Loan or REO Property, the
Special Servicer shall require that all bids be submitted in writing and be
accompanied by a refundable deposit of cash in an amount equal to 5% of the bid
amount. In determining whether any bid from a Person other than an Interested
Person or from an Interested Person other than the Special Servicer constitutes
a fair price for any such Mortgage Loan or REO Property, the Special Servicer
shall take into account (in addition to the results of any appraisal described
above and any appraisal that it may have obtained pursuant to Section 3.09(a)),
and any appraiser or other expert in real estate matters shall be instructed to
take into account, as applicable, among other factors, the period and amount of
any delinquency on the affected Mortgage Loan, the occupancy level and physical
condition of the Mortgaged Property or REO Property, the state of the local
economy and the obligation to dispose of any REO Property within the time period
specified in Section 3.16(a). The Purchase Price for any such Mortgage Loan or
REO Property shall in all cases be deemed a fair price. Notwithstanding the
other provisions of this Section 3.18 (but excluding a purchase pursuant to
Section 3.18(c)), no cash bid from the Master Servicer, Special Servicer or any
of their Affiliates thereof shall constitute a fair price for any Defaulted
Mortgage Loan or REO Property unless such bid is the highest bid received and at
least two independent bids (not including the bid of the Master Servicer,
Special Servicer or any Affiliate) have been received. In the event the bid of
the Special Servicer or any Affiliate is the only bid received or is the higher
of only two bids received, then additional bids shall be solicited. If an
additional bid or bids are received and the original bid of the Special Servicer
or any Affiliate is the highest of all bids received, then the bid of the
Special Servicer or such Affiliate shall no longer be deemed not to constitute a
fair price.
(f) Subject to Sections 3.18(a) through 3.18(e) above and Section
6.11, the Special Servicer shall act on behalf of the Trustee in negotiating
with independent third parties and taking any other action necessary or
appropriate in connection with the sale of any Defaulted Mortgage Loan or REO
Property, and the collection of all amounts payable in connection therewith. In
connection therewith, the Special Servicer may charge prospective bidders, and
may retain, fees that approximate the Special Servicer's actual costs in the
preparation and delivery of information pertaining to such sales or evaluating
bids without obligation to deposit such amounts into the Certificate Account.
Any sale of a Defaulted Mortgage Loan or any REO Property shall be final,
without recourse to the Trustee or the Trust Fund and without representations
and warranties of title and condition, unless liability for breach thereof is
limited to recourse against the Trust Fund, and if such sale is consummated in
accordance with the terms of this Agreement,
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neither the Special Servicer nor the Trustee shall have any liability to any
Certificateholder with respect to the purchase price therefor accepted by the
Special Servicer or the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property shall
be for cash only (unless changes in the REMIC Provisions or authoritative
interpretations thereof made or issued subsequent to the Startup Day allow a
sale for other consideration).
(h) The Special Servicer shall not be obligated by any of the
foregoing paragraphs of this Section 3.18 to accept the highest bid if the
Special Servicer determines, in accordance with the Servicing Standard, that
rejection of such bid would be in the best interests of the Certificateholders.
In addition, the Special Servicer may accept a lower bid (from other than itself
or an Affiliate) if it determines, in accordance with the Servicing Standard,
that acceptance of such bid would be in the best interests of the
Certificateholders (for example, if the prospective buyer making the lower bid
is more likely to perform its obligations or the terms offered by the
prospective buyer making the lower bid are more favorable).
SECTION 3.19. Additional Obligations of Master Servicer and Special
Servicer.
(a) The Master Servicer shall deliver to the Paying Agent for
deposit in the Distribution Account on each P&I Advance Date, without any right
of reimbursement therefor, with respect to each Mortgage Loan (other than a
Specially Serviced Mortgage Loan) that was subject to a Principal Prepayment
during the most recently ended Collection Period creating a Prepayment Interest
Shortfall, an amount equal to the lesser of (i) the amount of the related
Prepayment Interest Shortfall and (ii) the sum of (A) the Master Servicing Fee
(calculated for this purpose only at a rate of 0.025% per annum) received by the
Master Servicer during such Collection Period on such Mortgage Loan and (B)
investment income earned by the Master Servicer on the related Principal
Prepayment during the most recently ended Collection Period.
(b) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor under a Ground Lease, promptly
(and in any event within 60 days of the Closing Date) notify the related ground
lessor of the transfer of such Mortgage Loan to the Trust Fund pursuant to this
Agreement and inform such ground lessor that any notices of default under the
related Ground Lease should thereafter be forwarded to the Master Servicer.
(c) On each Determination Date, the Master Servicer shall deliver to
the Trustee, the Special Servicer and the Rating Agencies a report stating with
respect to each Credit Lease Loan as of a date no earlier than three (3)
Business Days prior to such Determination Date: (i) all publicly available
ratings of Standard & Poor's and DCR for the related Tenant or guarantor under
the Guaranty as of the Closing Date, the immediately preceding Determination
Date (if any) and the date of such report; and (ii) whether the related Tenant
or guarantor under the Guaranty has been placed on a "credit watch."
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SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) Subject to Sections 3.20(b) through 3.20(g) below and further
subject to Sections 3.08(b) and 6.11, the Master Servicer and the Special
Servicer may, on behalf of the Trustee, agree to any modification, waiver or
amendment of any term of any Mortgage Loan (including, subject to Section
3.20(i), the lease reviews and lease consents related thereto) without the
consent of the Trustee or any Certificateholder.
(b) All modifications, waivers or amendments of any Mortgage Loan
(including, subject to Section 3.20(i), the lease reviews and lease consents
related thereto) shall be in writing and shall be considered and effected in
accordance with the Servicing Standard.
(c) Except as provided in 3.20(d) and the last sentence of Section
3.02(a), the Special Servicer, on behalf of the Trustee, shall not agree or
consent to any modification, waiver or amendment of any term of any Mortgage
Loan that would:
(i) affect the amount or timing of any related payment of
principal, interest or other amount (including Prepayment Premiums
or Yield Maintenance Charges, but excluding Penalty Interest and
amounts payable as additional servicing compensation) payable
thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or permit a Principal
Prepayment during any period in which the related Mortgage Note
prohibits Principal Prepayments;
(iii) except as expressly contemplated by the related Mortgage
or pursuant to Section 3.09(d), result in a release of the lien of
the Mortgage on any material portion of the related Mortgaged
Property without a corresponding Principal Prepayment in an amount
not less than the fair market value (as determined by an appraisal
by an Independent Appraiser delivered to the Special Servicer at the
expense of the related Mortgagor and upon which the Special Servicer
may conclusively rely) of the property to be released; or
(iv) if such Mortgage Loan is (i) as to DCR equal to or in
excess of 2% of the then aggregate current principal balances of all
Mortgage Loans and (ii) as to Standard & Poor's, equal to or in
excess of 5% of the then aggregate current principal balances of all
Mortgage Loans or $20,000,000, permit the transfer or transfers of
equity interests in the borrower or any equity owner of the borrower
that would result, in the aggregate during the term of the related
Mortgage Loan, in a transfer greater than 49% of the total interest
in the borrower and/or any equity
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owner of the borrower or a transfer of voting control in the
borrower of an equity owner of the borrower without the prior
written confirmation from each Rating Agency that such changes will
not result in the qualification, downgrade or withdrawal to the
ratings then assigned to the Certificates;
(v) in the reasonable, good faith judgment of the Special
Servicer, otherwise materially impair the security for such Mortgage
Loan or reduce the likelihood of timely payment of amounts due
thereon; or
(vi) impair the value or enforceability of an RVI Policy.
In connection with any Rating Agency confirmation contemplated by
clause (iv) above, the Special Servicer shall provide to DCR, if available, the
Special Servicer's "action plan" (or any successor document, including a
recommendation), together with copies of all relevant documentation.
(d) Notwithstanding Section 3.20(c), but subject to the third
paragraph of this Section 3.20(d), and the rights of the Controlling Class
Representative set forth in Section 6.11, the Special Servicer may (i) reduce
the amounts owing under any Specially Serviced Mortgage Loan by forgiving
principal, accrued interest or any Prepayment Premium or Yield Maintenance
Charge, (ii) reduce the amount of the Periodic Payment on any Specially Serviced
Mortgage Loan, including by way of a reduction in the related Mortgage Rate,
(iii) forbear in the enforcement of any right granted under any Mortgage Note or
Mortgage relating to a Specially Serviced Mortgage Loan or (iv) accept a
Principal Prepayment on any Specially Serviced Mortgage Loan during any Lockout
Period; provided that (A) the related Mortgagor is in default with respect to
the Specially Serviced Mortgage Loan or, in the reasonable, good faith judgment
of the Special Servicer, such default is reasonably foreseeable, (B) in the
reasonable, good faith judgment of the Special Servicer, such modification would
increase the recovery on the Mortgage Loan to Certificateholders on a net
present value basis (the relevant discounting of amounts that will be
distributable to Certificateholders to be performed at the related Net Mortgage
Rate) and (C) such modification, waiver or amendment would not both (1) effect
an exchange or reissuance of the Mortgage Loan under Section 1001 of the Code
(and the Treasury regulations promulgated thereunder) and (2) cause REMIC I,
REMIC II or REMIC III to fail to qualify as a REMIC under the Code or result in
the imposition of any tax on "prohibited transactions" or "contributions" after
the Startup Day under the REMIC Provisions.
In addition, notwithstanding Section 3.20(c), but subject to the
third paragraph of this Section 3.20(d), the Special Servicer may extend the
date on which any Balloon Payment is scheduled to be due in respect of a
Specially Serviced Mortgage Loan if the conditions set forth in the proviso to
the prior paragraph are satisfied and the Special Servicer has obtained an
appraisal in accordance with the standards of the Appraisal Institute of the
related Mortgaged Property, performed by an Independent Appraiser, in connection
with such extension, which
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appraisal supports the determination of the Special Servicer contemplated by
clause (B) of the proviso to the immediately preceding paragraph and if such
Balloon Loan is an Insured Balloon Loan, that such extension will not impair the
value or enforceability of the related RVI Policy.
In no event will the Special Servicer (i) extend the maturity date
of a Mortgage Loan beyond a date that is two years prior to the Rated Final
Distribution Date, (ii) extend the maturity date of a Mortgage Loan for more
than three one-year extensions without the prior written conformation from DCR
that such extension will not result in the downgrade or withdrawal of the
ratings then assigned to the Certificates, (iii) extend the maturity date of any
Mortgage Loan which has a Mortgage Rate below the prevailing interest rate for
comparable loans at the time of such modification as determined by the Special
Servicer, unless (A) such Mortgage Loan is a Balloon Loan, (B) the related
Mortgagor has failed to make the Balloon Payment at its Stated Maturity Date and
(C) such Balloon Loan is not a Specially Serviced Mortgage Loan (other than by
reason of the failure to make its Balloon Payment) and has not been delinquent
with respect to a Periodic Payment (other than the Balloon Payment) in the
preceding twelve months, in which case the Special Servicer may permit up to
three one-year extensions at the existing Mortgage Rate for such Mortgage Loan
(provided that such limitation of extensions made at below market rate shall not
limit the ability of the Special Servicer to extend the maturity date of any
Mortgage Loan at an interest rate at or in excess to the prevailing rate for
comparable loans at the time of such modification), (iv) if the Mortgage Loan is
secured by a Ground Lease (and not by the corresponding fee simple interest),
extend the maturity date of such Mortgage Loan beyond a date which is less than
10 years (or, in the case of any such Mortgage Loan that is also a Balloon
Mortgage Loan or ARD Loan, 20 years) prior to the expiration of the term of such
Ground Lease; (v) reduce the Mortgage Rate to a rate below the prevailing
interest rate for comparable loans at the time of such modification, as
determined by the Special Servicer; or (vi) defer interest due on any Mortgage
Loan in excess of 10% of the Stated Principal Balance of such Mortgage Loan or
defer the collection of interest on any Mortgage Loan without accruing interest
on such deferred interest at a rate at least equal to the Mortgage Rate of such
Mortgage Loan. In connection with any DCR confirmation contemplated by clause
(iii) of this paragraph, the Special Servicer shall provide to DCR, if
available, the Special Servicer's "action plan" (or any successor document,
including a recommendation), together with copies of all relevant documentation.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 3.20(d) shall be evidenced
by an Officer's Certificate to such effect delivered to the Trustee and the
Master Servicer and describing in reasonable detail the basis for the Special
Servicer's determination. The Special Servicer shall append to such Officer's
Certificate any information including but not limited to income and expense
statements, rent rolls, property inspection reports and appraisals that support
such determination.
(e) Any payment of interest that is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal
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balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such modification, waiver or amendment so
permit. The foregoing shall in no way limit the Special Servicer's ability to
charge and collect from the Mortgagor costs otherwise collectible under the
terms of the related Mortgage Note and this Agreement together with interest
thereon.
(f) The Special Servicer or, with respect to clause (i) below, the
Master Servicer may, as a condition to granting any request by a Mortgagor for
consent, modification, waiver or indulgence or any other matter or thing, the
granting of which is within its discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan and is permitted by
the terms of this Agreement, require that such Mortgagor pay to it (i) as
additional servicing compensation, a reasonable or customary fee for the
additional services performed in connection with such request, and (ii) any
related costs and expenses incurred by it. In no event shall the Special
Servicer be entitled to payment for such fees or expenses unless such payment is
collected from the related Mortgagor.
(g) The Special Servicer shall notify the Master Servicer, any
related Sub- Servicers, the Trustee and the Rating Agencies, in writing, of any
modification, waiver or amendment of any term of any Mortgage Loan (including
fees charged the Mortgagor) and the date thereof, and shall deliver to the
Custodian for deposit in the related Mortgage File, an original counterpart of
the agreement relating to such modification, waiver or amendment, promptly (and
in any event within ten Business Days) following the execution thereof. Copies
of each agreement whereby any such modification, waiver or amendment of any term
of any Mortgage Loan is effected shall be made available for review upon prior
request during normal business hours at the offices of the Special Servicer
pursuant to Section 3.15(g) hereof.
(h) The Master Servicer shall not permit defeasance of any Mortgage
Loan (x) on or before the earliest date on which defeasance is permitted under
the terms of such Mortgage Loan, or (y) to the extent inconsistent with the
terms of such Mortgage Loan. The Master Servicer will not permit defeasance of
any Mortgage Loan unless (i) the defeasance collateral consists of U.S. Treasury
obligations, (ii) the Master Servicer has determined that the defeasance will
not result in an Adverse REMIC Event (provided that the Master Servicer shall be
entitled to rely conclusively on an Opinion of Counsel to that effect), (iii)
the Master Servicer has notified the Rating Agencies, (iv) Standard & Poor's
and, if the conditions described in clauses (i), (ii), (iii), (v) and (vi) of
this subsection are not satisfied, DCR have confirmed that such defeasance will
not result in the qualification (if applicable), downgrade or withdrawal of the
rating then assigned to any Class of Certificates to which a rating has been
assigned by either Rating Agency, (v) the Master Servicer has requested and
received from the related Mortgagor (A) an Opinion of Counsel generally to the
effect that the Trustee will have a perfected, first priority security interest
in such defeasance collateral and (B) written confirmation from a firm of
Independent accountants stating that payments made on such defeasance collateral
in accordance with the terms thereof will be sufficient to pay the subject
Mortgage Loan in full on or before its Stated Maturity Date and in accordance
with the Periodic Payment (or, in the case of an ARD
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Loan, on or before its Anticipated Repayment Date) and to timely pay each
Periodic Payment scheduled to be due prior thereto but after the defeasance, and
(vi) a single purpose entity (as defined below) is designated to assume the
Mortgage Loan and own the defeasance collateral; provided that, if under the
terms of the related Mortgage Loan documents, the related Mortgagor delivers
cash to purchase the defeasance collateral rather than the defeasance collateral
itself, the Master Servicer shall purchase the U.S. Treasury obligations
contemplated by the related Mortgage Loan documents. Subsequent to the second
anniversary of the Closing Date, to the extent that the Master Servicer can, in
accordance with the related Mortgage Loan documents, require defeasance of any
Mortgage Loan in lieu of accepting a prepayment of principal thereunder,
including a prepayment of principal accompanied by a Prepayment Premium or Yield
Maintenance Charge, the Master Servicer shall, to the extent it is consistent
with the Servicing Standard, require such defeasance, provided that the
conditions set forth in clauses (i) through (vi) of the preceding sentence have
been satisfied. Any customary and reasonable out-of-pocket expense incurred by
the Master Servicer pursuant to this Section 3.20(h) shall be paid by the
Mortgagor of the defeased Mortgage Loan pursuant to the related Mortgage,
Mortgage Note or other pertinent document, if so allowed by the terms of such
documents, and otherwise such expenses shall be recoverable as a Servicing
Advance. Notwithstanding the foregoing, if at any time, a court with
jurisdiction in the matter shall hold that the related Mortgagor may obtain a
release of the subject Mortgaged Property but is not obligated to deliver the
full amount of the defeasance collateral contemplated by the related Mortgage
Loan documents (or cash sufficient to purchase such defeasance collateral), then
the Master Servicer shall (i) if consistent with the related Mortgage Loan
documents, refuse to allow the defeasance of the Mortgage Loan or (ii) if the
Master Servicer cannot so refuse and if the related Mortgagor has delivered cash
to purchase the defeasance collateral, the Master Servicer shall either (A) buy
such defeasance collateral or (B) prepay the Mortgage Loan, in either case, in
accordance with the Servicing Standard. For purposes of this paragraph, a
"single purpose entity" shall mean a Person, other than an individual, whose
organization documents provide as follows: it is formed solely for the purpose
of owning and operating a single property, assuming a Mortgage Loan and owning
and pledging Defeasance Collateral; it may not engage in any business unrelated
to such property and the financing thereof; it does not have and may not own any
assets other than those related to its interest in the property or the financing
thereof and may not incur any indebtedness other than as permitted by the
related Mortgage; it shall maintain its own books, records and accounts, in each
case which are separate and apart from the books, records and accounts of any
other person; it shall hold regular meetings, as appropriate, to conduct its
business, and shall observe all entity level formalities and record keeping; it
shall conduct business in its own name and use separate stationery, invoices and
checks; it may not guarantee or assume the debts or obligations of any other
person; it shall not commingle its assets or funds with those of any other
person; it shall pay its obligations and expenses from its own funds and
allocate and charge reasonably and fairly any common employees or overhead
shared with affiliates; it shall prepare separate tax returns and financial
statements or, if part of a consolidated group, shall be shown as a separate
member of such group; it shall transact business with affiliates on an arm's
length basis pursuant to written agreements; and it shall hold itself out as
being a legal entity, separate and apart from any other
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person. The single purpose entity organizational documents shall provide that
any dissolution and winding up or insolvency filing for such entity requires the
unanimous consent of all partners or members, as applicable, and that such
documents may not be amended with respect to the single purpose entity
requirements during the term of the Mortgage Loan.
(i) For any Mortgage Loan other than a Specially Serviced Mortgage
Loan and subject to the rights of the Special Servicer set forth in this Section
3.20, the Master Servicer shall be responsible for any request by a Mortgagor
for the consent of the mortgagee for a modification, waiver or amendment of any
term with respect to:
(i) Approving routine leasing activity (including any
subordination, standstill and attornment agreements) with respect to
leases for less than the lesser of (a) 30,000 square feet and (b)
20% of the related Mortgaged Property;
(ii) Approving any waiver affecting the timing of receipt of
financial statements from any Mortgagor provided that such financial
statements are delivered no less than quarterly and within 60 days
of the end of the calendar quarter;
(iii) Approving annual budgets for the related Mortgaged
Property, provided that no such budget (1) provides for the payment
of operating expenses in an amount equal to more than 110% of the
amounts budgeted therefor for the prior year or (2) provides for the
payment of any material expenses to any affiliate of the Mortgagor
(other than the payment of a management fee to any property manager
if such management fee is no more than the management fee in effect
on the Cut-off Date); and
(iv) Subject to other restrictions herein regarding Principal
Prepayments, waiving any provision of a Mortgage Loan requiring a
specified number of days notice prior to a Principal Prepayment.
(j) The Special Servicer shall not consent to the modification,
waiver or amendment of an RVI Policy without receiving prior written
confirmation from each Rating Agency that such modification, waiver or amendment
will not result in a qualification, downgrade or withdrawal of the ratings on
the Certificates or the prior written consent of each Rating Agency. In
connection with such confirmation, the Special Servicer shall provide to DCR, if
available, any internal memorandum stating its analysis and recommendation in
accordance with the Servicing Standard, together with copies of all relevant
documentation. The Master Servicer shall not consent to any modification, waiver
or amendment of an RVI Policy.
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(k) To the extent that either the Master Servicer or Special
Servicer waives any Penalty Interest or late charge in respect of any Mortgage
Loan, whether pursuant to Section 3.02(a) or this Section 3.20, the respective
amounts of additional servicing compensation payable to the Master Servicer and
the Special Servicer out of such Penalty Interest or late payment charges shall
be reduced proportionately based upon the respective amounts that had been
payable thereto out of such Penalty Interest or late payment charges immediately
prior to such waiver.
(l) Notwithstanding anything to the contrary in this Agreement,
neither the Master Servicer nor the Special Servicer, as applicable, shall take
the following action unless it has received prior written confirmation (the cost
of which shall be paid by the related Mortgagor, if so allowed by the terms of
the related loan documents) from the Rating Agencies that such action will not
result in a qualification (if applicable), downgrade or withdrawal of any of the
ratings assigned by such Rating Agency to the Certificates:
(i) With respect to any Mortgaged Property that secures a
Mortgage Loan with an unpaid principal balance that is at least
equal to five percent (5%) of the then aggregate principal balance
of all Mortgage Loans or $20,000,000, the giving of any consent,
approval or direction regarding the termination of the related
property manager or the designation of any replacement property
manager; and
(ii) With respect to each Mortgage Loan with an unpaid
principal balance that is equal to or greater than (A) two percent
(2%) of the then aggregate principal balance of all the Mortgage
Loans or (B) $10,000,000, and which is secured by a Mortgaged
Property which is a hospitality property, the giving of any consent
to any change in the franchise affiliation of such Mortgaged
Property.
In connection with any Rating Agency confirmation contemplated by this Section
3.20(l), the Master Servicer or the Special Servicer, as applicable, shall
provide to DCR, if available, any internal memorandum stating its analysis and
recommendation in accordance with the Servicing Standard, together with copies
of all relevant documentations.
SECTION 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan, the Master Servicer shall promptly notify the
Trustee, and if the Master Servicer is not also the Special Servicer, the Master
Servicer shall immediately give notice thereof, and shall deliver or cause to be
delivered a copy of the related Mortgage File and Servicing File, to the Special
Servicer and shall use reasonable efforts to provide the Special Servicer with
all information, documents (or copies thereof) and records (including records
stored electronically on computer tapes, magnetic discs and the like) relating
to the Mortgage Loan either in the Master
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Servicer's or any of its directors', officers', employees', affiliates' or
agents' possession or control or otherwise available to the Master Servicer
without undue burden or expense, and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto
without acting through a Sub-Servicer. The Master Servicer shall use reasonable
efforts to comply with the preceding sentence within five Business Days of the
occurrence of each related Servicing Transfer Event; provided, however, if the
information, documents and records requested by the Special Servicer are not
contained in the Servicing File, the Master Servicer shall have such period of
time as reasonably necessary to make such delivery. Notwithstanding the
occurrence of a Servicing Transfer Event, the Master Servicer shall continue to
receive payments on such Mortgage Loan (including amounts collected by the
Special Servicer).
Upon determining that a Specially Serviced Mortgage Loan has become
a Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof, and shall
return the related Mortgage File and Servicing File and all other information,
documents and records that were not part of the Servicing File when it was
delivered to the Special Servicer within five Business Days of the occurrence,
to the Master Servicer (or such other Person as may be directed by the Master
Servicer) and upon giving such notice, and returning such Servicing File, to the
Master Servicer (or such other Person as may be directed by the Master
Servicer), the Special Servicer's obligation to service such Mortgage Loan, and
the Special Servicer's right to receive the Special Servicing Fee with respect
to such Mortgage Loan, shall terminate, and the obligations of the Master
Servicer to service and administer such Mortgage Loan shall resume.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Custodian originals of documents included within
the definition of "Mortgage File" for inclusion in the related Mortgage File
(with a copy of each such original to the Master Servicer), and copies of any
additional related Mortgage Loan information, including correspondence with the
related Mortgagor.
(c) On or before each Determination Date, the Special Servicer shall
deliver to the Master Servicer and each Rating Agency (or such other Person as
may be directed by the Master Servicer) a statement in writing and in computer
readable format (the form of such statement to be agreed upon by the Master
Servicer) describing, on a loan-by-loan and property-by-property basis, (1)
insofar as it relates to Specially Serviced Mortgage Loans and REO Properties,
the information described in clauses (x) through (xiii) of Section 4.02(a) and,
insofar as it relates to the Special Servicer, the information described in
clauses (xxiii) and (xxiv) of Section 4.02(a), (2) the amount of all payments,
Insurance Proceeds and Liquidation Proceeds received, and the amount of any
Realized Loss incurred, with respect to each
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Specially Serviced Mortgage Loan during the related Collection Period, and the
amount of all REO Revenues, Insurance Proceeds and Liquidation Proceeds
received, and the amount of any Realized Loss incurred, with respect to each REO
Property during the related Collection Period, (3) the amount, purpose and date
of all Servicing Advances made by the Special Servicer with respect to each
Specially Serviced Mortgage Loan and REO Property during the related Collection
Period and (4) such additional information relating to the Specially Serviced
Mortgage Loans and REO Properties as the Master Servicer reasonably requests to
enable it to perform its responsibilities under this Agreement. Notwithstanding
the foregoing provisions of this subsection (c), the Master Servicer shall
maintain ongoing payment records with respect to each of the Specially Serviced
Mortgage Loans and REO Properties and shall provide the Special Servicer with
any information reasonably available to the Master Servicer required by the
Special Servicer to perform its duties under this Agreement.
(d) No later than 30 days after a Mortgage Loan becomes a Specially
Serviced Mortgage Loan, the Special Servicer shall deliver to each Rating
Agency, the Trustee, the Master Servicer and the Controlling Class
Representative a report (the "Asset Status Report") with respect to such Loan
and the related Mortgaged Property. Such Asset Status Report shall set forth the
following information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Mortgage
Loan and negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental
considerations reasonably known to the Special Servicer, consistent
with the Servicing Standard, that are applicable to the exercise of
remedies as aforesaid and to the enforcement of any related
guaranties or other collateral for the related Specially Serviced
Mortgage Loan and whether outside legal counsel has been retained;
(iii) the most current rent roll and income or operating
statement available for the related Mortgaged Property;
(iv) the Appraised Value of the Mortgage Property together
with the assumptions used in the calculation thereof;
(v) summary of the Special Servicer's recommended action with
respect to such Specially Serviced Mortgage Loan; and
(vi) such other information as the Special Servicer deems
relevant in light of the Servicing Standard.
If within ten (10) Business Days of receiving an Asset Status
Report, the Controlling Class Representative does not disapprove such Asset
Status Report in writing, the Special Servicer shall implement the recommended
action as outlined in such Asset Status Report; provided, however, that the
Special Servicer may not take any action that is contrary to applicable law, the
Servicing Standard, or the terms of the applicable Mortgage Loan documents. If
the
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Controlling Class Representative disapproves such Asset Status Report, the
Special Servicer will revise such Asset Status Report and deliver to the
Controlling Class Representative, the Rating Agencies and the Master Servicer a
new Asset Status Report as soon as practicable, but in no event later than 30
days after such disapproval.
The Special Servicer shall revise such Asset Status Report as
described above in this Section 3.21(d) until the Controlling Class
Representative shall fail to disapprove such revised Asset Status Report in
writing within ten (10) Business Days of receiving such revised Asset Status
Report or until the Special Servicer makes one of the determinations described
below. The Special Servicer may, from time to time, modify any Asset Status
Report it has previously delivered and implement such report, provided such
report shall have been prepared, reviewed and not rejected pursuant to the terms
of this Section. Notwithstanding the foregoing, the Special Servicer (i) may,
following the occurrence of an extraordinary event with respect to the related
Mortgaged Property, take any action set forth in such Asset Status Report before
the expiration of a ten (10) Business Day period if the Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interests of the Certificateholders and it has made a
reasonable effort to contact the Controlling Class Representative and (ii) in
any case, shall determine whether such affirmative disapproval is not in the
best interest of all the Certificateholders pursuant to the Servicing Standard.
Upon making such determination in (ii) above, the Special Servicer
shall notify the Trustee of such rejection and deliver to the Trustee a proposed
notice to Certificateholders which shall include a copy of the Asset Status
Report, and the Trustee shall send such notice to all Certificateholders. If the
majority of such Certificateholders, as determined by Voting Rights, fail,
within 5 days of the Trustee's sending such notice, to reject such Asset Status
Report, the Special Servicer shall implement the same. If the Asset Status
Report is rejected by a majority of the Certificateholders (other than for a
reason which violates the Servicing Standard, which shall control), the Special
Servicer shall revise such Asset Status Report as described above in this
Section 3.21(d) and provide a copy of such revised report to the Master
Servicer. The Trustee shall be entitled to reimbursement from the Trust Fund for
the reasonable expenses of providing such notices.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standard and the related Asset Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required in order to act in
accordance with the Servicing Standard.
No direction of the Controlling Class Representative or the majority
of the Certificateholders shall (a) require or cause the Special Servicer to
violate the terms of a Specially Serviced Mortgage Loan, applicable law or any
provision of this Agreement, including the Special Servicer's obligation to act
in accordance with the Servicing Standard and to maintain the REMIC
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status of each REMIC, (b) result in the imposition of a "prohibited transaction"
or "prohibited contribution" tax under the REMIC Provisions or (c) expose the
Master Servicer, the Special Servicer, the Depositor, the Mortgage Loan Sellers,
the Trust Fund or the Trustee or the officers and the directors of each party to
claim, suit or liability or (d) expand the scope of the Master Servicer's,
Trustee's or Special Servicer's responsibilities under this Agreement.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer may enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of their respective obligations hereunder, provided that, in each case,
the Sub-Servicing Agreement: (i) is consistent with this Agreement in all
material respects, requires the Sub-Servicer to comply with all of the
applicable conditions of this Agreement and includes events of default with
respect to the Sub-Servicer substantially similar to the Events of Default set
forth in Section 7.01(a) hereof (other than Section 7.01(a)(x)) to the extent
applicable (modified to apply to the Sub-Servicer instead of the Master
Servicer); (ii) provides that if the Master Servicer or the Special Servicer, as
the case may be, shall for any reason no longer act in such capacity hereunder
(including, without limitation, by reason of an Event of Default), the Trustee
or its designee may thereupon assume all of the rights and, except to the extent
such obligations arose prior to the date of assumption, obligations of the
Master Servicer or the Special Servicer, as the case may be, under such
agreement or (except with respect only to the Sub-Servicing Agreements in effect
as of the date of this Agreement) may terminate such subservicing agreement
without cause and without payment of any penalty or termination fee (other than
the right of reimbursement and indemnification); (iii) provides that the
Trustee, for the benefit of the Certificateholders, shall be a third party
beneficiary under such agreement, but that (except to the extent the Trustee or
its designee assumes the obligations of the Master Servicer or the Special
Servicer, as the case may be, thereunder as contemplated by the immediately
preceding clause (ii)) none of the Trustee, the Trust Fund, any successor Master
Servicer or Special Servicer, as the case may be, or any Certificateholder shall
have any duties under such agreement or any liabilities arising therefrom; (iv)
permits any purchaser of a Mortgage Loan pursuant to this Agreement to terminate
such agreement with respect to such purchased Mortgage Loan at its option and
without penalty, (v) does not permit the Sub-Servicer to enter into or consent
to any modification, waiver or amendment or otherwise take any action on behalf
of the Special Servicer contemplated by Section 3.20 hereof without the consent
of such Special Servicer, and (vi) does not permit the Sub-Servicer any direct
rights of indemnification that may be satisfied out of assets of the Trust Fund.
In addition, each Sub-Servicing Agreement entered into by the Master Servicer
shall provide that such agreement shall be subject to Section 3.21 hereof with
respect to any Mortgage Loan that becomes a Specially Serviced Mortgage Loan.
The Master Servicer and the Special Servicer each shall deliver to the Trustee
and to each other copies of all Sub-Servicing Agreements, and any amendments
thereto and modifications thereof, entered into by it promptly upon its
execution and delivery of such documents. References in this Agreement to
actions taken or to be taken by the Master Servicer or the Special Servicer
include actions taken or to be taken by a Sub-Servicer on
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behalf of the Master Servicer or the Special Servicer, as the case may be; and,
in connection therewith, all amounts advanced by any Sub-Servicer to satisfy
the obligations of the Master Servicer or the Special Servicer hereunder to make
P&I Advances or Servicing Advances shall be deemed to have been advanced by the
Master Servicer or the Special Servicer, as the case may be, out of its own
funds and, accordingly, such P&I Advances or Servicing Advances shall be
recoverable by such Sub-Servicer in the same manner and out of the same funds
as if such Sub-Servicer were the Master Servicer or the Special Servicer, as the
case may be. For so long as they are outstanding, Advances shall accrue interest
in accordance with Sections 3.03(d) and 4.03(d), such interest to be allocable
between the Master Servicer or the Special Servicer, as the case may be, and
such Sub-Servicer as they may agree. For purposes of this Agreement, the Master
Servicer and the Special Servicer each shall be deemed to have received any
payment when a Sub-Servicer retained by it receives such payment. The Master
Servicer and the Special Servicer each shall notify the other, the Trustee and
the Depositor in writing promptly of the appointment by it of any Sub-Servicer.
(b) Each Sub-Servicer shall be authorized to transact business in
the state or states in which the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law, and shall be an
approved conventional seller/servicer of mortgage loans for FHLMC or FNMA or a
HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders, shall (at no expense to the Trustee, the
Certificateholders or the Trust Fund) monitor the performance and enforce the
obligations of their respective Sub-Servicers under the related Sub-Servicing
Agreements. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Sub-Servicing Agreements in accordance
with their respective terms and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as the Master
Servicer or the Special Servicer, as applicable, in its good faith business
judgment, would require were it the owner of the Mortgage Loans. Subject to the
terms of the related Sub-Servicing Agreement, the Master Servicer and the
Special Servicer may each have the right to remove a Sub-Servicer at any time it
considers such removal to be in the best interests of Certificateholders.
(d) In the event of the resignation, removal or other termination of
First Union National Bank or any successor Master Servicer hereunder for any
reason, the Trustee or other Person succeeding such resigning, removed or
terminated party as Master Servicer, shall elect, with respect to any
Sub-Servicing Agreement existing at the time of such termination: (i) to assume
the rights and obligations of the Master Servicer under such Sub-Servicing
Agreement and continue the sub-servicing arrangements thereunder on the same
terms (including without limitation the obligation to pay the same sub-servicing
fee); (ii) to enter into a new Sub-Servicing Agreement with such Sub-Servicer on
such terms as the Trustee or other successor Master Servicer and such
Sub-Servicer shall mutually agree (it being understood that such Sub-Servicer is
under no obligation to accept any such new Sub-Servicing Agreement or to enter
into or
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continue negotiations with the Trustee or other successor Master Servicer in
which case the existing Sub-Servicing Agreement shall remain in effect); or
(iii) to terminate the Sub-Servicing Agreement if (but only if) an Event of
Default (as defined in such Sub-Servicing Agreement) has occurred and is
continuing or either of the events set forth in clauses (i) or (ii) of the
following paragraph has occurred and is continuing, in each case without paying
any sub-servicer termination fee.
Each Sub-Servicing Agreement will provide, among other things, that
the Master Servicer and its successors may at its sole option, terminate any
rights the Sub-Servicer may have thereunder with respect to any or all Mortgage
Loans if DCR (i) reduces the rating assigned to one or more Classes of the
respective Certificates as a result of the sub-servicing of the Mortgage Loans
by the Sub-Servicer, or (ii) advises the Master Servicer or the Trustee in
writing that it will cause a qualification, downgrade or withdrawal of such
rating due to the continued servicing by the Sub-Servicer.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall remain obligated and liable to the Trustee and
the Certificateholders for the performance of their respective obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if each alone were servicing
and administering the Mortgage Loans or REO Properties for which it is
responsible.
SECTION 3.23. Representations and Warranties of Master Servicer and
Special Servicer.
(a) The Master Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Depositor and the Special Servicer, as of the
Closing Date, that:
(i) The Master Servicer is a national banking association,
duly organized under the laws of the United States of America, and
the Master Servicer is in compliance with the laws of each State in
which any Mortgaged Property is located to the extent necessary to
perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the
Master Servicer, and the performance and compliance with the terms
of this Agreement by the Master Servicer, will not violate the
Master Servicer's articles of association or by-laws or constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
material agreement or other material instrument to which it is a
party or by which it is bound.
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(iii) The Master Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered
this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Master Servicer, enforceable
against the Master Servicer in accordance with the terms hereof,
subject to (A) applicable receivership, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally and the rights of creditors of banks, and (B)
general principles of equity, regardless of whether such enforcement
is considered in a proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Master
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial
condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer that
would prohibit the Master Servicer from entering into this Agreement
or, in the Master Servicer's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of the
Master Servicer to perform its obligations under this Agreement or
the financial condition of the Master Servicer, calculated on a
consolidated basis;
(vii) Each officer, director, employee, consultant or advisor
of the Master Servicer with responsibilities concerning the
servicing and administration of Mortgage Loans is covered by errors
and omissions insurance in the amounts and with the coverage as, and
to the extent, required by Section 3.07(c).
(viii) The net worth of the Master Servicer (or, in the case
of the initial Master Servicer, the consolidated net worth thereof
and of its direct or indirect parent), determined in accordance with
generally accepted accounting principles, is not less than
$15,000,000.
(ix) Any consent, approval, authorization or order of any
court or governmental agency or body required for the execution,
delivery and performance by the Master Servicer of or compliance by
the Master Servicer with this
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Agreement or the consummation of the transactions contemplated by
this Agreement has been obtained and is effective.
(b) The Special Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Depositor and the Master Servicer, as of the
Closing Date, that:
(i) The Special Servicer is a limited liability company
validly existing and in good standing under the laws of the State of
Delaware, and the Special Servicer is in compliance with the laws of
each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the
Special Servicer, and the performance and compliance with the terms
of this Agreement by the Special Servicer, will not violate the
Special Servicer's certificate of incorporation or constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
material agreement or other material instrument by which it is
bound.
(iii) The Special Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered
this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Special Servicer, enforceable
against the Special Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, and (B) general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity
or at law.
(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the
Special Servicer's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Special
Servicer to perform its obligations under this Agreement or the
financial condition of the Special Servicer.
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(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special Servicer that
would prohibit the Special Servicer from entering into this
Agreement or, in the Special Servicer's good faith and reasonable
judgment, is likely to materially and adversely affect either the
ability of the Special Servicer to perform its obligations under
this Agreement or the financial condition of the Special Servicer.
(vii) Each officer, director and employee of the Special
Servicer and each consultant or advisor of the Special Servicer with
responsibilities concerning the servicing and administration of
Mortgage Loans is covered by errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(c).
(viii) Any consent, approval, authorization or order of any
court or governmental agency or body required for the execution,
delivery and performance by the Special Servicer of or compliance by
the Special Servicer with this Agreement or the consummation of the
transactions contemplated by this Agreement has been obtained and is
effective.
(c) The representations and warranties of the Master Servicer and
the Special Servicer, set forth in Sections 3.23(a) and (d) (with respect to the
Master Servicer) and Sections (b) and (e) (with respect to the Special
Servicer), respectively, shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the other parties.
(d) The Master Servicer represents and warrants that any custom-made
software or hardware designed or purchased or licensed by the Master Servicer
and used by the Master Servicer in the course of the operation or management of,
or the compiling, reporting or generation of data required by this Agreement
does not contain any material deficiency (x) in the ability of such software or
hardware to identify correctly or perform calculations or other processing with
respect to dates after August 31, 1999 or (y) that would cause such software or
hardware to be fit no longer for the purpose for which it was intended by reason
of the changing of the date from 1999 to 2000. A breach of the representation
and warranty set forth in this Section 3.23(d) shall constitute an Event of
Default subject to the grace period set forth in Section 7.01(a)(v) and, without
limiting any rights or remedies of the Trust Fund, the Certificateholders or any
other party hereto for a breach under any other section of this Agreement that
may arise out of a breach of the representation and warranty set forth in this
Section 3.23(d), termination shall be the sole remedy against the Master
Servicer for the breach of this covenant.
(e) The Special Servicer represents and warrants that any
mission-critical custom-made software or hardware designed or purchased or
licensed by the Special Servicer and
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used by the Special Servicer in the course of the operation or management of, or
the compiling, reporting or generation of data required by this Agreement does
not contain any material deficiency (x) in the ability of such software or
hardware to identify correctly or perform calculations or other processing with
respect to dates after August 31, 1999 or (y) that would cause such software or
hardware to be fit no longer for the purpose for which it was intended by reason
of the changing of the date from 1999 to 2000. A breach of the representation
and warranty set forth in this Section 3.23(e) shall constitute an Event of
Default and, without limiting any rights or remedies of the Trust Fund, the
Certificateholders or any other party hereto for a breach under any other
section of this Agreement that may arise out of a breach of the representation
and warranty set forth in this Section 3.23(e), termination shall be the sole
remedy against the Special Servicer for the breach of this covenant.
(f) The Master Servicer covenants that it will maintain the
Semi-Annual Loan Swap Agreement or an equivalent swap agreement (x) with First
Union National Bank so long as First Union National Bank maintains a long-term
counterparty rating of at least "A+" by Standard & Poor's or (y) if such rating
is downgraded, qualified or withdrawn, with a swap counterparty whose long-term
counterparty rating is at least "A+" by DCR (if then rated by DCR) and "A+" by
Standard & Poor's. The cost of maintaining such Semi-Annual Loan Swap Agreement
or equivalent swap agreement shall not be an expense of the Trust Fund except to
the extent of the Swap Fee payable as provided in Section 3.05(a)(xvii).
SECTION 3.24. Sub-Servicing Agreement Representation and Warranty
The Master Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Depositor and the Special Servicer, as of the
Closing Date, that each Sub-Servicing Agreement satisfies the requirements for
such Sub-Servicing Agreements set forth in Sections 3.22(a) and the second
paragraph of 3.22(d) in all material respects.
SECTION 3.25. Designation of Controlling Class Representative.
(a) The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled in accordance with
this Section 3.25 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 6.11) or to replace an existing
Controlling Class Representative. Upon (i) the receipt by the Trustee of written
requests for the selection of a Controlling Class Representative from the
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class, (ii) the resignation or removal of the Person acting as
Controlling Class Representative or (iii) a determination by the Trustee that
the Controlling Class has changed, the Trustee shall promptly notify the
Depositor and the Holders (and, in the case of Book-Entry
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Certificates, to the extent actually known to a Responsible Officer of the
Trustee or identified thereto by the Depository or the Depository Participants,
the Certificate Owners) of the Controlling Class that they may select a
Controlling Class Representative. Such notice shall set forth the process for
selecting a Controlling Class Representative, which shall be the designation of
the Controlling Class Representative by the Holders (or Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class by a writing delivered to the Trustee. No appointment of any
Person as a Controlling Class Representative shall be effective until such
Person provides the Trustee with written confirmation of its acceptance of such
appointment, an address and telecopy number for the delivery of notices and
other correspondence and a list of officers or employees of such Person with
whom the parties to this Agreement may deal (including their names, titles, work
addresses and telecopy numbers).
(b) Within ten (10) Business Days (or as soon thereafter as
practicable if the Controlling Class consists of Book-Entry Certificates) of
receiving a request therefor from the Master Servicer or Special Servicer, the
Trustee shall deliver to the requesting party the identity of the Controlling
Class Representative and a list of each Holder (or, in the case of Book-Entry
Certificates, to the extent actually known to a Responsible Officer of the
Trustee or identified thereto by the Depository or the Depository Participants,
each Certificate Owner) of the Controlling Class, including, in each case, names
and addresses. With respect to such information, the Trustee shall be entitled
to conclusively rely on information provided to it by the Depository, and the
Master Servicer and the Special Servicer shall be entitled to rely on such
information provided by the Trustee with respect to any obligation or right
hereunder that the Master Servicer and the Special Servicer may have to deliver
information or otherwise communicate with the Controlling Class Representative
or any of the Holders (or, if applicable, Certificate Owners) of the Controlling
Class. In addition to the foregoing, within two (2) Business Days of the
selection, resignation or removal of a Controlling Class Representative, the
Trustee shall notify the other parties to this Agreement of such event. The
expenses incurred by the Trustee in connection with obtaining information from
the Depository or Depository Participants with respect to any Book-Entry
Certificate shall be expenses of the Trust Fund payable out of the Collection
Account pursuant to Section 3.05(a).
(c) A Controlling Class Representative may at any time resign as
such by giving written notice to the Trustee and to each Holder (or, in the case
of Book-Entry Certificates, Certificate Owner) of the Controlling Class. The
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class shall be entitled to remove any existing Controlling Class
Representative by giving written notice to the Trustee and to such existing
Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected
pursuant to this Section 3.25 each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders
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(or, in the case of Book-Entry Certificates, the Certificate Owners) of the
Controlling Class, by aggregate Certificate Principal Balance, or such
Controlling Class Representative, as applicable, shall have notified the Trustee
and each other Holder (or, in the case of Book-Entry Certificates, Certificate
Owner) of the Controlling Class, in writing, of the resignation or removal of
such Controlling Class Representative.
(e) Any and all expenses of the Controlling Class Representative
shall be borne by the Holders (or, if applicable, the Certificate Owners) of
Certificates of the Controlling Class, PRO RATA according to their respective
Percentage Interests in such Class, and not by the Trust. Notwithstanding the
foregoing, if a claim is made against the Controlling Class Representative by a
Mortgagor with respect to this Agreement or any particular Mortgage Loan, the
Controlling Class Representative shall immediately notify the Trustee, the
Master Servicer and the Special Servicer, whereupon (if the Special Servicer or
the Trust Fund are also named parties to the same action and, in the sole
judgment of the Special Servicer, (i) the Controlling Class Representative had
acted in good faith, without negligence or willful misfeasance with regard to
the particular matter, and (ii) there is no potential for the Special Servicer
or the Trust Fund to be an adverse party in such action as regards the
Controlling Class Representative) the Special Servicer on behalf of the Trust
Fund shall, subject to Section 6.03, assume the defense of any such claim
against the Controlling Class Representative. This provision shall survive the
termination of this Agreement and the termination or resignation of the
Controlling Class Representative.
SECTION 3.26. Special Provisions Regarding the Servicing and Other
Matters Concerning the Split Note.
The parties hereto acknowledge and agree that the servicing and
administration of the Split Note is governed by the Other Note PSA, and that the
related loan documents are part of the Other Trust Fund, and that pursuant to
the Intercreditor Agreement, the Split Note Servicing Agreement, and the Other
Note PSA, the Other Note Servicer is responsible for and obligated to service
the Other Note in accordance with the provisions of the Other Note PSA.
Accordingly, (i) the Master Servicer, the Special Servicer and the Trustee have
no obligation to or responsibility or liability for the servicing or
administration of the Split Note, other than as specifically set forth in this
Section 3.26, including but not limited to Section 10.01(l), (m) and (n).
Nothing in this Agreement, including the Servicing Standard, shall require the
Master Servicer to monitor or enforce the performance of the Other Servicer
pursuant to the Split Note Servicing Agreement, the Intercreditor Agreement or
the Other Note PSA, and (ii) the Split Note shall not be subject to the
provisions of Articles III, IV, VI, VII or VIII of this Agreement.
Notwithstanding the foregoing: (i) the Master Servicer shall make certain
advances in accordance with the terms of the Split Note Servicing Agreement and
be entitled to reimbursement therefore, with Advance Interest, and such advances
shall be treated in all respects as Advances for purposes of this Agreement,
(ii) the Master Servicer shall deliver any reports or statements concerning the
Split Note that it receives from the Other Servicer in
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accordance with the delivery requirements of this Agreement, provided that such
delivery shall be made on the next stipulated delivery date that is not less
than three Business Days after the Master Servicer has received such reports or
statements, (iii) the Master Servicer shall remit to the Trustee payments
received with respect to the Split Note on the later of the next following P&I
Advance Date and the first Business Day after receipt, and (iv) in the event the
Master Servicer resigns or is terminated the Trustee or other Person succeeding
the Master Servicer shall succeed to the Master Servicer's rights and
obligations pursuant to the Split Note Servicing Agreement without further
action on the part of any party. In the event the Other Note is repaid or
otherwise terminated, all provisions in this Agreement concerning the Split Note
will be serviced and administered in all respects as all other Mortgage Loans.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDER
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Paying Agent shall (except as
otherwise provided in Section 9.01), based on information provided by the Master
Servicer and the Special Servicer, apply amounts on deposit in the Distribution
Account, after payment of amounts payable from the Distribution Account in
accordance with Section 3.05(b)(ii) through (vii), for the following purposes
and in the following order of priority, in each case to the extent of the
remaining portion of the Available Distribution Amount:
(i) to distributions of interest to the Holders of the Senior
Certificates in an amount equal to, and pro rata in accordance with,
all Distributable Certificate Interest in respect of each Class of
Senior Certificates for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates;
(ii) to distributions of principal to the Holders of the Class
A-1 Certificates, in an amount (not to exceed the Class Principal
Balance of the Class A-1 Certificates outstanding immediately prior
to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date;
(iii) after the Class Principal Balance of the Class A-1
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class A-2 Certificates, in an amount (not to
exceed the Class Principal Balance of the Class A-2 Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any
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portion thereof distributed on such Distribution Date to the Holders
of the Class A-1 Certificates pursuant to clause (ii) above);
(iv) to distributions to the Holders of the Class A-1
Certificates and the Holders of the Class A-2 Certificates, pro rata
in accordance with, in an amount equal to, and in reimbursement of,
all Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to each such Class of Certificates and not
previously reimbursed;
(v) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(vi) after the Class Principal Balances of the Class A-1
Certificates and the Class A-2 Certificates have been reduced to
zero, to distributions of principal to the Holders of the Class B
Certificates, in an amount (not to exceed the Class Principal
Balance of the Class B Certificates outstanding immediately prior to
such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other
Class of Certificates pursuant to any prior clause of this Section
4.01(a)).
(vii) to distributions to the Holders of the Class B
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class B Certificates and not previously
reimbursed;
(viii) to distributions of interest to the Holders of the
Class C Certificates in an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for
such Distribution Date and, to the extent not previously paid, for
all prior Distribution Dates;
(ix) after the Class Principal Balance of the Class B
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class C Certificates, in an amount (not to
exceed the Class Principal Balance of the Class C Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
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(x) to distributions to the Holders of the Class C
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class C Certificates and not previously
reimbursed;
(xi) to distributions of interest to the Holders of the Class
D Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class D Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xii) after the Class Principal Balance of the Class C
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class D Certificates, in an amount (not to
exceed the Class Principal Balance of the Class D Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xiii) to distributions to the Holders of the Class D
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class D Certificates and not previously
reimbursed;
(xiv) to distributions of interest to the Holders of the Class
E Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class E Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xv) after the Class Principal Balance of the Class D
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class E Certificates, in an amount (not to
exceed the Class Principal Balance of the Class E Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xvi) to distributions to the Holders of the Class E
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class E Certificates and not previously
reimbursed;
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(xvii) to distributions of interest to the Holders of the
Class F Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class F Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xviii) after the Class Principal Balance of the Class E
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class F Certificates, in an amount (not to
exceed the Class Principal Balance of the Class F Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xix) to distributions to the Holders of the Class F
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class F Certificates and not previously
reimbursed;
(xx) to distributions of interest to the Holders of the Class
G Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class G Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxi) after the Class Principal Balance of the Class F
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class G Certificates, in an amount (not to
exceed the Class Principal Balance of the Class G Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxii) to distributions to the Holders of the Class G
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class G Certificates and not previously
reimbursed;
(xxiii) to distributions of interest to the Holders of Class H
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class H Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
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(xxiv) after the Class Principal Balance of the Class G
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class H Certificates, in an amount (not to
exceed the Class Principal Balance of the Class H Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxv) to distributions to the Holders of the Class H
Certificates in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to such Class of Certificates and not
previously reimbursed;
(xxvi) to distributions of interest to the Holders of the
Class J Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class J Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxvii) after the Class Principal Balance of the Class H
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class J Certificates, in an amount (not to
exceed the Class Principal Balance of the Class J Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxviii) to distributions to the Holders of the Class J
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class J Certificates and not previously
reimbursed;
(xxix) to distributions of interest to the Holders of the
Class K Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class K Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxx) after the Class Principal Balance of the Class J
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class K Certificates, in an amount (not to
exceed the Class Principal Balance of the Class K Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion
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thereof distributed on such Distribution Date to the Holders of any
other Class of Certificates pursuant to any prior clause of this
Section 4.01(a));
(xxxi) to distributions to the Holders of the Class K
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class K Certificates and not previously
reimbursed;
(xxxii) to distributions of interest to the Holders of the
Class L Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class L Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxxiii) after the Class Principal Balance of the Class K
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class L Certificates, in an amount (not to
exceed the Class Principal Balance of the Class L Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxxiv) to distributions to the Holders of the Class L
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class L Certificates and not previously
reimbursed;
(xxxv) to distributions of interest to the Holders of the
Class M Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class M Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxxvi) after the Class Principal Balance of the Class L
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class M Certificates, in an amount (not to
exceed the Class Principal Balance of the Class M Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxxvii) to distributions to the Holders of the Class M
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust
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Fund Expenses, if any, previously allocated to the Class M
Certificates and not previously reimbursed;
(xxxviii) to distributions of interest to the Holders of the
Class N Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class N Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxxix) after the Class Principal Balance of the Class M
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class N Certificates, in an amount (not to
exceed the Class Principal Balance of the Class N Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xl) to distributions to the Holders of the Class N
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class N Certificates and not previously
reimbursed; and
(xli) to make distributions to the Holders of the Class R-III
Certificates, in an amount equal to the excess, if any, of (A) the
aggregate distributions deemed made in respect of the REMIC II
Regular Interests on such Distribution Date pursuant to Section
4.01(h), over (B) the aggregate distributions deemed made in respect
of the Regular Certificates on such Distribution Date pursuant to
clauses (i) through (xi) above;
(xlii) to make distributions to the Holders of the Class R-II
Certificates, up to an amount equal to the excess, if any, of (A)
the aggregate distributions deemed made in respect of the REMIC I
Regular Interests on such Distribution Date pursuant to Section
4.01(i), over (B) the aggregate distributions deemed made in respect
of the REMIC II Regular Interests on such Distribution Date pursuant
to Section 4.01(h); and
(xliii)to distributions to the Holders of the Class R-I
Certificates, in an amount equal to the balance, if any, of the
Available Distribution Amount for such Distribution Date remaining
after the distributions to be made on such Distribution Date
pursuant to clauses (i) through (xiii) above;
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provided that on each Distribution Date after the aggregate of Class Principal
Balances of each Class of Subordinated Certificates has been reduced to zero,
the payments of principal to be made as contemplated by clauses (ii) and (iii)
above with respect to the Class A Certificates will be made to the Holders of
the respective Classes of such Class A Certificates up to an amount equal to,
and pro rata as among such Classes in accordance with, the respective then
outstanding Class Principal Balances of such Classes of Certificates and without
regard to the Principal Distribution Amount for such Distribution Date.
Distributions in reimbursement of Realized Losses and Additional Trust Fund
Expenses previously allocated to a Class of Certificates shall not constitute
distributions of principal and shall not result in reduction of the related
Class Principal Balance.
All distributions of interest made in respect of the Class IO
Certificates on any Distribution Date pursuant to clause (i) above, shall be
deemed to have been made in respect of all the Components of such Class, pro
rata in accordance with the respective amounts of Distributable Certificate
Interest that would be payable on such Components on such Distribution Date if
each such Component were treated as a separate Class of Regular Certificates.
(b) On each Distribution Date, the Paying Agent shall withdraw from
the Distribution Account any amounts that represent Prepayment Premiums and/or
Yield Maintenance Charges actually collected on the Mortgage Loans and any REO
Loans during the related Collection Period and shall distribute each such
Prepayment Premium and/or Yield Maintenance Premium, as additional yield, as
follows:
(i) With respect to Prepayment Premiums:
(A) First, to the Holders of the respective Classes of
Sequential Pay Certificates (other than any
Excluded Class thereof) entitled to distributions
of principal pursuant to Section 4.01(a) on the
related Distribution Date, up to an amount of
Prepayment Premiums equal to the product of (x)
the amount of such Prepayment Premiums, multiplied
by (y) a fraction, the numerator of which is equal
to the amount of principal distributable to such
Class of Sequential Pay Certificates on the
related Distribution Date, and the denominator of
which is the Principal Distribution Amount for the
related Distribution Date, multiplied by (z) 25%;
and
(B) Second, to the Holders of the Class IO
Certificates, to the extent of any remaining
portion of such Prepayment Premiums (distributions
pursuant to this sub-clause (i)(B) to be deemed
allocable among the respective Components of the
Class IO Certificates on a pro rata basis in
accordance with the respective amounts of
Accrued Component Interest
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in respect of such Components for the subject
Distribution Date).
(ii) With respect to Yield Maintenance Premiums:
(A) First, to the Holders of the respective Classes of
Sequential Pay Certificates (other than any
Excluded Class thereof) entitled to distributions
of principal pursuant to Section 4.01(a) on such
Distribution Date, up to an amount equal to, and
pro rata based on, the Additional Yield Amounts
for each such Class of Certificates for such
Distribution Date; and
(B) Second, to the Holders of the Class IO
Certificates, to the extent of any remaining
portion of such Yield Maintenance Charge
(distributions pursuant to this sub-clause (ii)(B)
to be deemed allocable among the respective
Components of the Class IO Certificates on a pro
rata basis in accordance with the respective
amounts of Accrued Component Interest in respect
of such Components for the subject Distribution
Date).
On each Distribution Date, the Paying Agent shall withdraw from the
Distribution Account any amounts that represent Additional Interest actually
collected on the ARD Loans and any related REO Loans during the related
Collection Period and shall distribute: (i) 5% of such amounts to the Holders of
the Class IO Certificates; and (ii) 95% of such amounts among the Holders of the
Class A-1 Certificates, the Class A-2 Certificates and the Class B Certificates
on a pro rata basis in accordance with the respective Original Class Principal
Balances of such Classes of Certificates, without regard to whether any such
Class is entitled to distributions of principal on such Distribution Date
(whether by reason of its Class Principal Balance having been reduced to zero or
by reason of it not yet being entitled to distributions of principal).
Notwithstanding that the Class Principal Balance or Class Notional Amount, as
the case may be, of any such Class of Certificates has been reduced to zero, the
Holders thereof shall remain entitled to any such distributions of Additional
Interest, provided that the Trustee's obligation is limited to distributions to
the last Certificateholder of record.
(c) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
in such Class based on their respective Percentage Interests. Except as
otherwise provided below, all such distributions with respect to each Class on
each Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a
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bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
Distribution Dates), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined, in the case of a Sequential Pay
Certificate, without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to such Certificate,
but taking into account possible future distributions of Additional Interest)
will be made in a like manner, but only upon presentation and surrender of such
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution. Prior
to any termination of the Trust Fund pursuant to Section 9.01, any distribution
that is to be made with respect to a Certificate in reimbursement of a Realized
Loss or Additional Trust Fund Expense previously allocated thereto, which
reimbursement is to occur after the date on which such Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Certificateholder that surrendered such Certificate
as such address last appeared in the Certificate Register or to any other
address of which the Paying Agent was subsequently notified in writing. If such
check is returned to the Paying Agent, the Paying Agent, directly or through an
agent, shall take such reasonable steps to contact the related Holder and
deliver such check as it shall deem appropriate. Any funds in respect of a check
returned to the Paying Agent shall be set aside by the Paying Agent and held
uninvested in trust and credited to the account of the appropriate Holder. The
costs and expenses of locating the appropriate Holder and holding such funds
shall be paid out of such funds. No interest shall accrue or be payable to any
former Holder on any amount held in trust hereunder. If the Paying Agent has
not, after having taken such reasonable steps, located the related Holder by the
second anniversary of the initial sending of a check, the Paying Agent shall,
subject to applicable law, distribute the unclaimed funds to the Holders of the
Class R-III Certificates.
(d) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the related Certificate Owners that it represents. None of
the Trustee, the Paying Agent, the Certificate Registrar, the Depositor or the
Master Servicer shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law. The Trustee and the Depositor
shall perform their respective obligations under a Letter of Representations
among the Depositor, the Trustee and the Initial Depository dated as of the
Closing Date.
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(e) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of the Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts properly
previously distributed on the Certificates.
(f) Except as otherwise provided in Section 9.01, whenever the
Paying Agent receives written notification of or expects that the final
distribution with respect to any Class of Certificates (determined without
regard to any possible future reimbursement of any Realized Loss or Additional
Trust Fund Expense previously allocated to such Class of Certificates) will be
made on the next Distribution Date, the Paying Agent shall, no later than five
days after the related Determination Date, mail to each Holder of record on such
date of such Class of Certificates a notice to the effect that:
(i) the Paying Agent expects that the final distribution with
respect to such Class of Certificates will be made on such
Distribution Date but only upon presentation and surrender of such
Certificates at the office of the Certificate Registrar or at such
other location therein specified, and
(ii) no interest shall accrue on such Certificates from and
after such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(f) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Paying Agent, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust pursuant to this paragraph. If all of the Certificates shall not
have been surrendered for cancellation by the second anniversary of the delivery
of the second notice, the Paying Agent shall, subject to applicable law,
distribute to the Holders of the Class R-III Certificates all unclaimed funds
and other assets which remain subject thereto.
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(g) Notwithstanding any other provision of this Agreement, the
Paying Agent shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Paying Agent reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Paying
Agent does withhold any amount from interest or original issue discount payments
or advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Paying Agent shall indicate the amount withheld to such
Certificateholders.
(h) All distributions made in respect of any Class of Sequential Pay
Certificates on each Distribution Date pursuant to Section 4.01(a), the first
paragraph of Section 4.01(b) or Section 9.01 shall be deemed to have first been
distributed from REMIC II to REMIC III in respect of its Corresponding REMIC II
Regular Interest set forth in the Preliminary Statement hereto; and all
distributions made in respect of the Class IO Certificates on each Distribution
Date pursuant to Section 4.01(a), the first paragraph of Section 4.01(b) or
Section 9.01, and allocable to any particular Component of such Class of
Certificates, shall be deemed to have first been distributed from REMIC II to
REMIC III in respect of such Component's Corresponding REMIC II Regular
Interest. In each case, if such distribution on any such Class of Regular
Certificates was a distribution of interest, of principal, of Prepayment
Premiums or Yield Maintenance Charges or in reimbursement of previously
allocated Realized Losses and Additional Trust Fund Expenses in respect of such
Class of Regular Certificates, then the corresponding distribution deemed to be
made on a REMIC II Regular Interest pursuant to the preceding sentence shall be
deemed to also be a distribution of interest, of principal, of Prepayment
Premiums or Yield Maintenance Charges or in reimbursement of previously
allocated Realized Losses and Additional Trust Fund Expenses, as the case may
be, in respect of such REMIC II Regular Interest.
(i) On each Distribution Date, including, without limitation, the
final Distribution Date in connection with a termination of the Trust Fund, the
Available Distribution Amount for such date shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of the REMIC I Regular
Interests, in each case to the extent of the remaining portions of such funds,
for the following purposes and in the following order of priority:
(i) as deemed distributions of interest in respect of the
REMIC I Regular Interests, in an amount equal to, and pro rata in
accordance with, all Uncertificated Distributable Interest in
respect of each such REMIC I Regular Interest for such Distribution
Date and, to the extent not previously deemed distributed, for all
prior Distribution Dates;
(ii) as deemed distributions of principal in respect of the
REMIC I Regular Interests, in an amount equal to, and pro rata in
accordance with, as to each such REMIC I Regular Interest, the
excess, if any, of the Uncertificated Principal Balance of such
REMIC I Regular Interest outstanding immediately prior to such
Distribution Date, over the Stated Principal Balance of the related
Mortgage
147
Loan (or successor REO Loan) that will be outstanding
immediately following such Distribution Date; and
(iii) as deemed distributions in respect of the REMIC I
Regular Interests, in an amount equal to, pro rata in accordance
with, and in reimbursement of, any Realized Losses and Additional
Trust Fund Expenses (with compounded interest), previously allocated
to each such REMIC I Regular Interest.
Any Prepayment Premiums or Yield Maintenance Charges distributed to
any Class of Regular Certificates on any Distribution Date shall, in each case,
be deemed to have been distributed from REMIC I to REMIC II in respect of the
REMIC I Regular Interest corresponding to the prepaid Mortgage Loan or REO Loan,
as the case may be, in respect of which such premium or charge was received.
SECTION 4.02. Statements to Certificateholders; CMSA Loan File
Report.
(a) On each Distribution Date, the Trustee shall forward by mail (or
by electronic transmission acceptable to the recipient) to each
Certificateholder, each initial Certificate Owner and (upon written request made
to the Trustee) each subsequent Certificate Owner (as identified to the
reasonable satisfaction of the Trustee), the Depositor, the Master Servicer, the
Special Servicer, the Underwriters and each Rating Agency, a statement (a
"Distribution Date Statement"), as to the distributions made on such
Distribution Date, based on information provided to it by the Master Servicer
and the Special Servicer, setting forth:
(i) the amount of the distribution on such Distribution Date
to the Holders of each Class of Regular Certificates in reduction of
the Class Principal Balance thereof;
(ii) the amount of the distribution on such Distribution Date
to the Holders of each Class of Regular Certificates allocable to
Distributable Certificate Interest;
(iii) the amount of the distribution on such Distribution Date
to the Holders of each Class of Regular Certificates allocable to
(A) Prepayment Premiums and/or Yield Maintenance Charges or (B)
Additional Interest;
(iv) the amount of the distribution on such Distribution Date
to the Holders of each Class of Regular Certificates in
reimbursement of previously allocated Realized Losses and Additional
Trust Fund Expenses;
(v) the Available Distribution Amount for such Distribution
Date;
000
(xx) (x) xxx xxxxxxxxx xxxxxx xx X&X Advances made in respect
of such Distribution Date pursuant to Section 4.03(a), including,
without limitation, any amounts applied pursuant to Section
4.03(a)(ii), and the aggregate amount of xxxxxxxxxxxx X&X Advances
that had been outstanding at the close of business on the related
Determination Date and the aggregate amount of interest accrued and
payable to the Master Servicer or the Trustee in respect of such
xxxxxxxxxxxx X&X Advances in accordance with Section 4.03(d) as of
the close of business on the related Determination Date, (b) the
aggregate amount of Servicing Advances as of the close of business
on the related Determination Date and (c) the aggregate amount of
all Nonrecoverable Advances as of the close of business on the
related Determination Date;
(vii) the aggregate unpaid principal balance of the Mortgage
Pool outstanding as of the close of business on the related
Determination Date;
(viii) the aggregate Stated Principal Balance of the Mortgage
Pool outstanding immediately before and immediately after such
Distribution Date;
(ix) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Loans as of the close of business on the related
Determination Date;
(x) the number, aggregate unpaid principal balance (as of the
close of business on the related Determination Date) and aggregate
Stated Principal Balance (immediately after such Distribution Date)
of Mortgage Loans (A) delinquent 30-59 days, (B) delinquent 60-89
days, (C) delinquent more than 89 days, (D) as to which foreclosure
proceedings have been commenced, and (E) to the actual knowledge of
the Master Servicer or Special Servicer, in bankruptcy proceedings;
(xi) as to each Mortgage Loan referred to in the preceding
clause (x) above, (A) the loan number thereof, (B) the Stated
Principal Balance thereof immediately following such Distribution
Date, and (C) a brief description of any executed loan modification;
(xii) with respect to any Mortgage Loan as to which a
Liquidation Event occurred during the related Collection Period
(other than a payment in full), (A) the loan number thereof, (B) the
aggregate of all Liquidation Proceeds and other amounts received in
connection with such Liquidation Event (separately identifying the
portion thereof allocable to distributions on the Certificates), and
(C) the amount of any Realized Loss in connection with such
Liquidation Event;
149
(xiii) with respect to any REO Property included in the Trust
Fund as to which a Final Recovery Determination was made during the
related Collection Period, (A) the loan number of the related
Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and
other amounts received in connection with such Final Recovery
Determination (separately identifying the portion thereof allocable
to distributions on the Certificates), and (C) the amount of any
Realized Loss in respect of the related REO Loan in connection with
such Final Recovery Determination;
(xiv) the Accrued Certificate Interest and Distributable
Certificate Interest in respect of each Class of Regular
Certificates for such Distribution Date;
(xv) any unpaid Distributable Certificate Interest in respect
of each Class of Regular Certificates after giving effect to the
distributions made on such Distribution Date;
(xvi) the Pass-Through Rate for each Class of Regular
Certificates for such Distribution Date;
(xvii) the Principal Distribution Amount for such Distribution
Date, separately identifying the respective components thereof (and,
in the case of any Principal Prepayment or other unscheduled
collection of principal received during the related Collection
Period, the loan number for the related Mortgage Loan and the amount
of such prepayment or other collection of principal);
(xviii) the aggregate of all Realized Losses incurred during
the related Collection Period and all Additional Trust Fund Expenses
incurred during the related Collection Period;
(xix) the aggregate of all Realized Losses and Additional
Trust Fund Expenses that were allocated on such Distribution Date;
(xx) the Class Principal Balance of each Class of Regular
Certificates (other than the Class IO Certificates) and the
Component Notional Amount of each Component outstanding immediately
before and immediately after such Distribution Date, separately
identifying any reduction therein due to the allocation of Realized
Losses and Additional Trust Fund Expenses on such Distribution Date;
(xxi) the Certificate Factor for each Class of Regular
Certificates immediately following such Distribution Date;
150
(xxii) the aggregate amount of interest on P&I Advances paid
to the Master Servicer and the Trustee during the related Collection
Period in accordance with Section 4.03(d);
(xxiii) the aggregate amount of interest on Servicing Advances
paid to the Master Servicer, the Trustee and the Special Servicer
during the related Collection Period in accordance with Section
3.03(d);
(xxiv) the aggregate amount of servicing fees paid to the
Master Servicer and the Special Servicer during the related
Collection Period; and
(xxv) the loan number for each Required Appraisal Loan and any
related Appraisal Reduction Amount as of the related Determination
Date;
(xxvi) the original and then current credit support levels for
each Class of Regular Certificates;
(xxvii) the original and then current ratings for each Class
of Regular Certificates;
(xxviii) the aggregate amount of Prepayment Premiums and Yield
Maintenance Charges collected during the related Collection Period;
and
(xxix) the amounts, if any, actually distributed with respect
to the Class R-I Certificates, Class R-II Certificates and Class
R-III Certificates on such Distribution Date.
In the case of information to be furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a basis for
information to be furnished pursuant to clauses (x) through (xiii), and (xxiv)
above, insofar as the underlying information is solely within the control of the
Special Servicer, the Trustee and the Master Servicer may, absent manifest
error, conclusively rely on the reports to be provided by the Special Servicer.
The Trustee may rely on and shall not be responsible absent manifest
error for the content or accuracy of any information provided by third parties
for purposes of preparing the Distribution Date Statement and may affix thereto
any disclaimer it deems appropriate in its reasonable discretion (without
suggesting liability on the part of any other party hereto).
151
The Trustee shall make available or shall cause to be delivered on
each Distribution Date either electronically or by first class mail to each
Certificateholder, the Depositor, the Underwriters, each Rating Agency, the
Special Servicer and any other Person designated in writing by the Depositor (by
hard copy, on diskette or via such other electronic medium as is mutually
acceptable to the Trustee and the recipient) a copy of the following eight
reports or in the case of reports to Persons designated in writing by the
Depositor, any of the following eight reports delivered to it by the Master
Servicer pursuant to Section 3.12(c): (i) the Delinquent Loan Status Report,
(ii) the Historical Liquidation Report, (iii) the Historical Loan Modification
Report, (iv) the REO Status Report, (v) the Watch List, (vi) a Comparative
Financial Status Report, (vii) an Operating Statement Analysis and (viii) an NOI
Adjustment Worksheet. The Trustee shall make available or shall cause to be
delivered on each Distribution Date by first class mail (or by electronic
transmission acceptable to the recipient) to each Certificateholder, each
Certificate Owner, the Underwriters, the Depositor, each Rating Agency and each
other Person that received a Distribution Date Statement on such Distribution
Date a hard copy (or a copy in an electronic medium acceptable to the recipient)
of the CMSA Loan File Report, the CMSA Property File Report, CMSA Periodic
Update File, the CMSA Bond File Report, and the CMSA Collateral File Report
containing information regarding each Mortgaged Property most recently received
from the Master Servicer. Absent manifest error, none of the Master Servicer or
the Special Servicer shall be responsible for the accuracy or completeness of
any information supplied to it by a borrower or third party that is included in
any reports, statements, materials or information prepared or provided by the
Master Servicer or the Special Servicer, as applicable. The Trustee shall not be
responsible absent manifest error for the accuracy or completeness of any
information supplied to it for delivery pursuant to this Section. Neither the
Trustee, the Master Servicer nor the Special Servicer shall have any obligation
to verify the accuracy or completeness of any information provided by a
Mortgagor or third party.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall, upon request, send to each Person who at any time
during the calendar year was a Certificateholder of record, a report summarizing
on an annual basis (if appropriate) the items provided to Certificateholders
pursuant to clauses (i), (ii), (iii) and (iv) of the description of
"Distribution Date Statement" above and such other information as may be
required to enable such Certificateholders to prepare their federal income tax
returns. Such information shall include the amount of original issue discount
accrued on each Class of Certificates and information regarding the expenses of
the Trust Fund. Such requirement shall be deemed to be satisfied to the extent
such information is provided pursuant to applicable requirements of the Code
from time to time in force.
On each Distribution Date, the Trustee shall provide or make
available to The Xxxxx Group (at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, or such other address as The Xxxxx Group may hereafter designate), a
copy of the Distribution Date Statement forwarded to the Holders of the Regular
Certificates on such Distribution Date.
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If any Certificate Owner does not receive through the Depository or
any of its Depository Participants any of the statements, reports and/or other
written information described above in this Section 4.02(a) that it would
otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book Entry
Certificates, then the Trustee shall mail or cause the mailing of such
statements, reports and/or other written information to such Certificate Owner
upon the request of such Certificate Owner made in writing to the Corporate
Trust Office (accompanied by current verification of such Certificate Owner's
ownership interest). Such portion of such information as may be agreed upon by
the Depositor and the Trustee shall be furnished to any such Person via
overnight courier delivery or telecopy from the Trustee; provided that the cost
of such overnight courier delivery or telecopy shall be an expense of the party
requesting such information.
The Trustee shall only be obligated to deliver the statements,
reports and information contemplated by this Section 4.02(a) to the extent it
receives the necessary underlying information from the Special Servicer or
Master Servicer, as applicable, and shall not be liable for any failure to
deliver any thereof on the prescribed due dates, to the extent caused by failure
to receive timely such underlying information. Nothing herein shall obligate the
Trustee or the Master Servicer to violate any applicable law prohibiting
disclosure of information with respect to any Mortgagor and the failure of the
Trustee, Master Servicer or the Special Servicer to disseminate information for
such reason shall not be a breach hereof.
(b) Not later than 2:00 p.m. New York City time on the second
Business Day preceding each Distribution Date the Master Servicer shall furnish
to the Trustee, the Depositor, the Special Servicer and the Underwriters, by
electronic transmission (or in such other form to which the Trustee or the
Depositor, as the case may be, and the Master Servicer may agree), with a hard
copy of such transmitted information to follow promptly, an accurate and
complete CMSA Loan File Report providing the required information for the
Mortgage Loans as of such Determination Date. The Depositor shall provide the
information necessary for the CMSA set up file.
In the performance of its obligations set forth in Section 4.05 and
its other duties hereunder, the Trustee may conclusively rely on reports
provided to it by the Master Servicer, and the Trustee shall not be responsible
to recompute, recalculate or verify the information provided to it by the Master
Servicer. In the case of information to be furnished by the Master Servicer to
the Trustee pursuant to this Section 4.02(b), insofar as such information is
solely within the control of the Special Servicer, the Master Servicer shall
have no obligation to provide such information until it has received such
information from the Special Servicer, shall not be in default hereunder due to
a delay in providing the CMSA Loan File Report caused by the Special Servicer's
failure to timely provide any report required under this Agreement and may,
absent manifest error, conclusively rely on the reports to be provided by the
Special Servicer.
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SECTION 4.03. P&I Advances.
(a) On or before 2:00 p.m., New York City time, on each P&I Advance
Date, the Master Servicer shall (i) apply amounts in the Certificate Account
received after the end of the related Collection Period or otherwise held for
future distribution to Certificateholders in subsequent months in discharge of
its obligation to make P&I Advances or (ii) subject to Section 4.03(c) below,
remit from its own funds to the Paying Agent for deposit into the Distribution
Account an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date. The Master Servicer may also
make P&I Advances in the form of any combination of clauses (i) and (ii) above
aggregating the total amount of P&I Advances to be made. Any amounts held in the
Certificate Account for future distribution and so used to make P&I Advances
shall be appropriately reflected in the Master Servicer's records and replaced
by the Master Servicer by deposit in the Certificate Account on or before the
next succeeding Determination Date (to the extent not previously replaced
through the deposit of Late Collections of the delinquent principal and interest
in respect of which such P&I Advances were made). If, as of 3:00 p.m., New York
City time, on any P&I Advance Date, the Master Servicer shall not have made any
P&I Advance required to be made on such date pursuant to this Section 4.03(a)
(and shall not have delivered to the Trustee the requisite Officer's Certificate
and documentation related to a determination of nonrecoverability of a P&I
Advance), then the Trustee shall provide notice of such failure to a Servicing
Officer of the Master Servicer by facsimile transmission sent to telecopy (704)
593-7735 (or such alternative number provided by the Master Servicer to the
Trustee in writing) and by telephone at telephone (000) 000-0000 (or such
alternative number provided by the Master Servicer to the Trustee in writing) as
soon as possible, but in any event before 4:00 p.m., New York City time, on such
P&I Advance Date. If the Trustee does not receive the full amount of such P&I
Advances by 10:00 a.m., New York City time, on the related Distribution Date,
then, subject to Section 4.03(c), (i) the Trustee shall, no later than 11:00
a.m., New York City time, on such related Distribution Date make the portion of
such P&I Advances that was required to be, but was not, made by the Master
Servicer on such P&I Advance Date, and (ii) the provisions of Sections 7.01 and
7.02 shall apply.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer or the Trustee in respect of any Distribution Date shall, subject to
Section 4.03(c) below, equal (i) the aggregate of all Periodic Payments (other
than Balloon Payments) and any Assumed Scheduled Payments, net of related
Servicing Fees, and, if applicable, Swap Fees due or deemed
due, as the case may be, in respect of the Mortgage Loans (including, without
limitation, Balloon Mortgage Loans delinquent as to their respective Balloon
Payments) and any REO Loans on their respective Due Dates during the related
Collection Period, in each case to the extent such amount was not paid by or on
behalf of the related Mortgagor or otherwise collected (including as net income
from REO Properties) as of the close of business on the related Determination
Date and (ii) with respect to each Semi-Annual Mortgage Loan for which there is
no Due Date in the month in which such Distribution Date falls, the Semi-Annual
Loan Interest Advance Amount for such Semi-Annual Mortgage Loan and such
Distribution Date; provided, that, (x) if the Periodic
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Payment on any Mortgage Loan has been reduced in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section 3.20,
or if the final maturity on any Mortgage Loan shall be extended in connection
with a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment granted or agreed to by the Special Servicer
pursuant to Section 3.20, and the Periodic Payment due and owing during the
extension period is less than the related Assumed Scheduled Payment, then the
Master Servicer or the Trustee shall, as to such Mortgage Loan only, advance
only the amount of the Periodic Payment due and owing after taking into account
such reduction (net of related Servicing Fees and, if applicable, Swap Fees) in
the event of subsequent delinquencies thereon; and (y) if it is determined that
an Appraisal Reduction Amount exists with respect to any Required Appraisal
Loan, then, with respect to the Distribution Date immediately following the date
of such determination and with respect to each subsequent Distribution Date for
so long as such Appraisal Reduction Amount exists with respect to such Required
Appraisal Loan, the Master Servicer or the Trustee will be required in the event
of subsequent delinquencies to advance in respect of such Mortgage Loan only an
amount equal to the sum of (A) the product of (1) the amount of the interest
portion of the P&I Advance that would otherwise be required without regard to
this clause (ii), multiplied by (2) a fraction, the numerator of which is equal
to the Stated Principal Balance of such Mortgage Loan, net of such Appraisal
Reduction Amount, and the denominator of which is equal to the Stated Principal
Balance of such Mortgage Loan and (B) the amount of the principal portion of the
P&I Advance that would otherwise be required without regard to this clause (ii).
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. The determination by the Master
Servicer that it has made a Nonrecoverable P&I Advance or that any proposed P&I
Advance, if made, would constitute a Nonrecoverable P&I Advance, shall be
evidenced by an Officers' Certificate delivered to the Trustee and the Depositor
on or before the related P&I Advance Date, setting forth the basis for such
determination, together with any other information, including Appraisals (or, if
no such Appraisal has been performed pursuant to this Section 4.03(c), a copy of
an Appraisal of the related Mortgaged Property performed within the twelve
months preceding such determination), related Mortgagor operating statements and
financial statements, budgets and rent rolls of the related Mortgaged
Properties, engineers' reports, environmental surveys and any similar reports
that the Master Servicer may have obtained consistent with the Servicing
Standard and at the expense of the Trust Fund, that support such determination
by the Master Servicer. On the fourth Business Day before each Distribution
Date, the Special Servicer shall report to the Master Servicer the Special
Servicer's determination as to whether each P&I Advance made with respect to any
previous Distribution Date or required to be made with respect to such
Distribution Date with respect to any Specially Serviced Mortgage Loan or REO
Loan is a Nonrecoverable P&I Advance. The Master Servicer shall be entitled to
conclusively rely on such determination. The Trustee shall be entitled to rely,
conclusively, on any determination by the Master Servicer that a P&I Advance, if
made, would be a Nonrecoverable Advance (and with respect to a P&I Advance, the
Trustee, as applicable,
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shall rely on the Master Servicer's determination that the P&I Advance would be
a Nonrecoverable Advance if the Trustee determines that it does not have
sufficient time to make such determination); provided, however, that if the
Master Servicer has failed to make a P&I Advance for reasons other than a
determination by the Master Servicer that such P&I Advance would be
Nonrecoverable Advance, the Trustee shall make such Advance within the time
periods required by Section 4.03(a) unless the Trustee, in good faith, makes a
determination prior to the times specified in Section 4.03(a) that such P&I
Advance would be a Nonrecoverable Advance. The Trustee in determining whether or
not a P&I Advance previously made is, or a proposed P&I Advance, if made, would
be, a Nonrecoverable Advance shall be subject to the standards applicable to the
Master Servicer hereunder.
(d) In connection with the recovery by the Master Servicer or the
Trustee of any P&I Advance out of the Certificate Account pursuant to Section
3.05(a), subject to the next sentence, the Master Servicer shall be entitled to
pay itself or the Trustee, as the case may be, out of any amounts then on
deposit in the Certificate Account, interest at the Reimbursement Rate in effect
from time to time, compounded annually, accrued on the amount of such P&I
Advance (to the extent made with its own funds) from the date made to but not
including the date of reimbursement such interest to be payable (i) out of late
payment charges and Penalty Interest that have been collected on or in respect
of the related Mortgage Loan or REO Loan from January 1 of the same calendar
year in which such P&I Advance is reimbursed through the date of such
reimbursement (the use of such late payment charges and Penalty Interest to be
allocated between the Master Servicer and the Special Servicer on a pro rata
basis based on the amount of late payment charges and Penalty Interest that the
Master Servicer and the Special Servicer have received as additional servicing
compensation during such period), and (ii) to the extent that the late payment
charges and Penalty Interest described in the immediately preceding clause (i)
are insufficient, but only after such P&I Advance has been reimbursed, out of
general collections on the Mortgage Loans and any REO Properties on deposit in
the Certificate Account. Under no circumstances shall the Master Servicer or the
Trustee be entitled to recover interest on any portion of a P&I Advance
represented by a Semi-Annual Loan Interest Advance Amount so long as no payment
default exists under such Semi-Annual Mortgage Loan, and if any such payment
default does exist, the Master Servicer shall be entitled to recover interest on
any such P&I Advance only from and after the Due Date as to which such default
occurred. The Master Servicer shall reimburse itself or the Trustee, as
applicable, for any outstanding P&I Advance made thereby as soon as practicable
after funds available for such purpose have been received by the Master
Servicer, and in no event shall interest accrue in accordance with this
Section 4.03(d) on any P&I Advance as to which the corresponding Late Collection
was received by the Master Servicer on or prior to the related P&I Advance Date.
SECTION 4.04. Allocation of Realized Losses and Additional Trust
Fund Expenses; Allocation of Certificate Deferred
Interest.
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(a) On each Distribution Date, following all distributions to be
made on such date pursuant to Section 4.01, the Paying Agent shall allocate to
the respective Classes of Sequential Pay Certificates as follows the aggregate
of all Realized Losses and Additional Trust Fund Expenses that were incurred at
any time following the Cut-off Date through the end of the related Collection
Period, and in any event that were not previously allocated pursuant to this
Section 4.04(a) on any prior Distribution Date, but only to the extent that (i)
the aggregate Certificate Principal Balance of the Sequential Pay Certificates
as of such Distribution Date (after taking into account all of the distributions
made on such Distribution Date pursuant to Section 4.01), exceeds (ii) the
aggregate Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date: first, to the Class N
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; second, to the Class M Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; third, to the Class L
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; fourth, to the Class K Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; fifth, to the Class J
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; sixth, to the Class H Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; seventh, to the Class G
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; eighth, to the Class F Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; ninth, to the Class E
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; tenth, to the Class D Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; eleventh, to the Class C
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; twelfth, to the Class B Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; and thirteenth pro rata
(based on remaining Class Principal Balances) to the Class A-1 Certificates and
the Class A-2 Certificates, until the Class Principal Balances thereof are
reduced to zero. Any allocation of Realized Losses and Additional Trust Fund
Expenses to a Class of Regular Certificates shall be made by reducing the Class
Principal Balance thereof by the amount so allocated. All Realized Losses and
Additional Trust Fund Expenses, if any, allocated to a Class of Regular
Certificates shall be allocated among the respective Certificates of such Class
in proportion to the Percentage Interests evidenced thereby. All Realized Losses
and Additional Trust Fund Expenses, if any, that have not been allocated to the
Regular Certificates as of the Distribution Date on which the aggregate
Certificate Principal Balance of such Certificates has been reduced to zero,
shall be deemed allocated to the Residual Certificates.
(b) Each Realized Loss and Additional Trust Fund Expense, if any,
allocated to the Class A-1 Certificates on any Distribution Date shall be deemed
to have first been allocated to REMIC II Regular Interest M with a corresponding
reduction in the Uncertificated Principal Balance of such REMIC II Regular
Interest; each Realized Loss and Additional Trust Fund Expense, if any,
allocated to the Class A-2 Certificates on any Distribution Date shall be deemed
to have first been allocated to REMIC II Regular Interest N with a corresponding
reduction in the Uncertificated Principal Balance of such REMIC II Regular
Interest; each Realized Loss and
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Additional Trust Fund Expense, if any, allocated to the Class B Certificates on
any Distribution Date shall be deemed to have first been allocated to REMIC II
Regular Interest O with a corresponding reduction in the Uncertificated
Principal Balance of such REMIC II Regular Interest; each Realized Loss and
Additional Trust Fund Expense, if any, allocated to the Class C Certificates on
any Distribution Date shall be deemed to have first been allocated to REMIC II
Regular Interest P with a corresponding reduction in the Uncertificated
Principal Balance of such REMIC II Regular Interest; each Realized Loss and
Additional Trust Fund Expense, if any, allocated to the Class D Certificates on
any Distribution Date shall be deemed to have first been allocated to REMIC II
Regular Interest Q with a corresponding reduction in the Uncertificated
Principal Balance of such REMIC II Regular Interest; each Realized Loss and
Additional Trust Fund Expense, if any, allocated to the Class E Certificates on
any Distribution Date shall be deemed to have first been allocated to REMIC II
Regular Interest R with a corresponding reduction in the Uncertificated
Principal Balance of such REMIC II Regular Interest; each Realized Loss and
Additional Trust Fund Expense, if any, allocated to the Class F Certificates on
any Distribution Date shall be deemed to have first been allocated to REMIC II
Regular Interest S with a corresponding reduction in the Uncertificated
Principal Balance of such REMIC II Regular Interest; each Realized Loss and
Additional Trust Fund Expense, if any, allocated to the Class G Certificates on
any Distribution Date shall be deemed to have first been allocated to REMIC II
Regular Interest T with a corresponding reduction in the Uncertificated
Principal Balance of such REMIC II Regular Interest; each Realized Loss and
Additional Trust Fund Expense, if any, allocated to the Class H Certificates on
any Distribution Date shall be deemed to have first been allocated to REMIC II
Regular Interest U with a corresponding reduction in the Uncertificated
Principal Balance of such REMIC II Regular Interest; each Realized Loss and
Additional Trust Fund Expense, if any, allocated to the Class J Certificates on
any Distribution Date shall be deemed to have first been allocated to REMIC II
Regular Interest V with a corresponding reduction in the Uncertificated
Principal Balance of such REMIC II Regular Interest; each Realized Loss and
Additional Trust Fund Expense, if any, allocated to the Class K Certificates on
any Distribution Date shall be deemed to have first been allocated to REMIC II
Regular Interest W with a corresponding reduction in the Uncertificated
Principal Balance of such REMIC II Regular Interest; each Realized Loss and
Additional Trust Fund Expense, if any, allocated to the Class L Certificates on
any Distribution Date shall be deemed to have first been allocated to REMIC II
Regular Interest X with a corresponding reduction in the Uncertificated
Principal Balance of such REMIC II Regular Interest; each Realized Loss and
Additional Trust Fund Expense, if any, allocated to the Class M Certificates on
any Distribution Date shall be deemed to have first been allocated to REMIC II
Regular Interest Y with a corresponding reduction in the Uncertificated
Principal Balance of such REMIC II Regular Interest; and each Realized Loss and
Additional Trust Fund Expense, if any, allocated to the Class N Certificates on
any Distribution Date shall be deemed to have first been allocated to REMIC II
Regular Interest Z with a corresponding reduction in the Uncertificated
Principal Balance of such REMIC II Regular Interest.
(c) On each Distribution Date, following the deemed distributions to
be made in respect of the REMIC I Regular Interests pursuant to Section 4.01(i),
the Uncertified Principal
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Balance of each REMIC I Regular Interest (after taking account of such deemed
distributions) shall be reduced to equal the Stated Principal Balance of the
related Mortgage Loan or REO Loan, as the case may be, that will be outstanding
immediately following such Distribution Date. Such reductions shall be deemed to
be an allocation of Realized Losses and Additional Trust Fund Expenses.
(d) On any Distribution Date, the amount of any Mortgage Deferred
Interest will be allocated as Certificate Deferred Interest to each outstanding
Class of Sequential Pay Certificates in reverse alphabetical order, in each case
up to the respective Accrued Certificate Interest for each such Class of
Certificates for such Distribution Date. On each such Distribution Date, the
Certificate Principal Balance of each Class of Certificates to which Certificate
Deferred Interest has been allocated will be increased by the amount of
Certificate Deferred Interest allocated to such Class.
SECTION 4.05. Calculations.
The Paying Agent shall, provided it receives the necessary
information from the Master Servicer and the Special Servicer, be responsible
for performing all calculations necessary in connection with the actual and
deemed distributions and allocations to be made pursuant to Section 4.01,
Section 5.02(d) and Article IX and the actual and deemed allocations of Realized
Losses and Additional Trust Fund Expenses to be made pursuant to Section 4.04.
The Paying Agent shall calculate the Available Distribution Amount for each
Distribution Date and shall allocate such amount among Certificateholders in
accordance with this Agreement, and the Paying Agent shall have no obligation to
recompute, recalculate or verify any information provided to it by the Special
Servicer or Master Servicer. The calculations by the Paying Agent of such
amounts shall, in the absence of manifest error, be presumptively deemed to be
correct for all purposes hereunder.
SECTION 4.06. Use of Agents.
The Master Servicer or the Trustee may at its own expense utilize
agents or attorneys-in-fact in performing any of its obligations under this
Article IV (except the obligation to make P&I Advances), but no such utilization
shall relieve the Master Servicer or the Trustee from any of such obligations or
liabilities, and the Master Servicer or the Trustee, as applicable, shall remain
responsible for all acts and omissions of any such agent or attorney-in-fact
(other than with respect to limited powers-of-attorney delivered by the Trustee
to the Master Servicer or Special Servicer pursuant to Section 2.03(b) and
3.01(b), as applicable, in which case the Trustee shall have no such
responsibility).
ARTICLE V
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THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibit A; provided that any of the Certificates may be
issued with appropriate insertions, omissions, substitutions and variations, and
may have imprinted or otherwise reproduced thereon such legend or legends, not
inconsistent with the provisions of this Agreement, as may be required to comply
with any law or with rules or regulations pursuant thereto, or with the rules of
any securities market in which the Certificates are admitted to trading, or to
conform to general usage. The Certificates will be issuable in registered form
only; provided, however, that in accordance with Section 5.03 beneficial
ownership interests in the Regular Certificates shall initially be held and
transferred through the book-entry facilities of the Depository. The Regular
Certificates will be issuable only in denominations corresponding to initial
Certificate Principal Balances or initial Certificate Notional Amounts, as the
case may be, as of the Closing Date of not less than $1,000 in the case of the
Registered Certificates (other than the Class IO Certificates), $1,000,000 in
the case of the Class IO Certificates, and $250,000 in the case of
Non-Registered Certificates (other than the Residual Certificates), and in each
such case in integral multiples of $1 in excess thereof. The Class R-I
Certificates, the Class R-II Certificates and the Class R-III Certificates shall
have no minimum denomination and shall each be represented by a single
definitive certificate.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Certificate
Registrar shall be entitled to all benefits under this Agreement, subject to the
following sentence, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, however, unless there appears on such Certificate a certificate
of authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar (located as of the Closing Date at Norwest
Center, Sixth and Marquette, Minneapolis, Minnesota 55479-0113), shall provide
for the registration of Certificates and of transfers and exchanges of
Certificates as herein
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provided. The Trustee is hereby initially appointed (and hereby agrees to act in
accordance with the terms hereof) as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided. The Certificate Registrar may appoint, by a written instrument
delivered to the Depositor, the Trustee, the Special Servicer and (if the
Trustee is not the Certificate Registrar) the Master Servicer, any other bank or
trust company to act as Certificate Registrar under such conditions as the
predecessor Certificate Registrar may prescribe, provided that the predecessor
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment. If the Trustee resigns
or is removed in accordance with the terms hereof, the successor trustee shall
immediately succeed to its duties as Certificate Registrar. The Depositor, the
Trustee (if it is no longer the Certificate Registrar), the Master Servicer and
the Special Servicer shall have the right to inspect the Certificate Register or
to obtain a copy thereof at all reasonable times, and to rely conclusively upon
a certificate of the Certificate Registrar as to the information set forth in
the Certificate Register. Upon written request of any Certificateholder made for
purposes of communicating with other Certificateholders with respect to their
rights under this Agreement, the Certificate Registrar shall promptly furnish
such Certificateholder with a list of the other Certificateholders of record
identified in the Certificate Register at the time of the request.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. If such a transfer is to be made
without registration under the Securities Act (other than in connection with the
initial issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective Affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives (and upon receipt, may
conclusively rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
G-1 hereto, and a certificate from such Certificateholder's prospective
transferee substantially in the form attached as either Exhibit G-2 hereto or as
Exhibit G-3 hereto; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify any Class of
Non-Registered Certificates under the Securities Act or any other securities law
or to take any action not otherwise required under this Agreement to permit the
transfer of any Non-Registered Certificate without registration or
qualification. Any Holder of a Non-Registered Certificate desiring to effect
such a transfer shall, and upon acquisition of such a Certificate shall be
deemed to have agreed to, indemnify the Trustee, the Certificate Registrar and
the Depositor
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against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
In connection with transfer of the Non-Registered Certificates, the
Depositor shall furnish upon request of a Certificateholder or Certificate Owner
to such Holder or Certificate Owner and any prospective purchaser designated by
such Certificateholder or Certificate Owner the information required to be
delivered under paragraph (d)(4) of Rule 144A of the Securities Act.
Notwithstanding the foregoing, for so long as any Non-Registered
Certificate is a Book-Entry Certificate, (a) each prospective transferor of such
Certificate shall be deemed to have represented to the Trustee, the Depositor
and the transferee of such Certificate the information set forth on Exhibit G-1
upon or prior to such transfer and (b) each prospective transferee of such
Certificate shall be deemed to have represented to the Trustee, the Depositor
and the transferor of such Certificate the information set forth on Exhibit G-2
or Exhibit G-3 upon or prior to such transfer.
(c) (i) No transfer of a Class A Certificate or Class IO Certificate
or any interest therein shall be made to any "employee benefit plan" subject to
ERISA or a "plan" described by Section 4975(e)(1) of the Code, or any entity
deemed to hold plan assets of the foregoing by reason of a plan's investment in
such entity (each, a "Plan") unless such Plan qualifies as an accredited
investor as defined in Rule 501(a)(1) of Regulation D under the Securities Act
and either (1) at the time of such transfer, the Class A Certificates are rated
in one of the top three rating categories by at least one Rating Agency, or (2)
the purchaser is an insurance company general account that is eligible for, and
satisfies all of the requirements of, Section III of Prohibited Transaction
Class Exemption 95-60 ("PTE 95-60"). Each Person who acquires a Class A
Certificate or Class IO Certificate in Definitive Certificate form shall be
required to certify in writing, in the form attached as Exhibit H hereto, that
it meets the foregoing conditions, and each Person who acquires a Class A
Certificate or Class IO Certificate in Book-Entry Certificate form shall be
deemed to have represented that the foregoing conditions are satisfied and that
it will not transfer such Certificate in violation of the foregoing.
(ii) No transfer of a Subordinated Certificate or any interest
therein shall be made to any Plan unless it is an insurance company general
account which is eligible for, and satisfies all the requirements of, exemptive
relief under Section III of PTE 95-60. Each Person who acquires a Subordinated
Certificate in Definitive Certificate form shall be required to certify in
writing in the form attached as Exhibit H hereto that it meets the foregoing
conditions, and each Person who acquires a Subordinated Certificate in
Book-Entry Certificate form shall be deemed to have represented that the
foregoing conditions are satisfied and that it will not transfer such
Certificate in violation of the foregoing.
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(d) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions
and to have irrevocably authorized the Paying Agent under clause (ii)(A) below
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Certificate Registrar under clause (ii)(B) below to negotiate the
terms of any mandatory disposition and to execute all instruments of Transfer
and to do all other things necessary in connection with any such sale. The
rights of each Person acquiring any Ownership Interest in a Residual Certificate
are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted
Transferee and shall promptly notify the Master Servicer, the
Paying Agent and the Certificate Registrar of any change or
impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Residual Certificate, the Certificate
Registrar shall require delivery to it, and shall not register
the Transfer of any Residual Certificate until its receipt of
an affidavit and agreement substantially in the form attached
hereto as Exhibit I-1 (in any case, a "Transfer Affidavit and
Agreement"), from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, and upon
which the Certificate Registrar may, in the absence of actual
knowledge by a Responsible Officer of either the Trustee or
the Certificate Registrar to the contrary, conclusively rely,
representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring
its Ownership Interest in the Residual Certificate that is the
subject of the proposed Transfer as a nominee, trustee or
agent for any Person that is not a Permitted Transferee, that
for so long as it retains its Ownership Interest in a Residual
Certificate, it will endeavor to remain a Permitted
Transferee, and that it has reviewed the provisions of this
Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee under clause (B) above,
if a Responsible Officer of the Certificate Registrar has
actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership Interest in
a Residual Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (1) to require
a Transfer Affidavit and Agreement from any prospective
Transferee to whom such Person attempts
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to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in
such Residual Certificate unless it provides to the
Certificate Registrar a certificate substantially in the form
attached hereto as Exhibit I-2 stating that, among other
things, it has no actual knowledge that such prospective
Transferee is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership
Interest in a Residual Certificate, by purchasing an Ownership
Interest in such Certificate, agrees to give the Master
Servicer and the Trustee written notice that it is a
"pass-through interest holder" within the meaning of temporary
Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring an Ownership Interest in a Residual
Certificate, if it is, or is holding an Ownership Interest in
a Residual Certificate on behalf of, a pass-through interest
holder".
(ii) (A) If any purported Transferee shall become a Holder of
a Residual Certificate in violation of the provisions of this
Section 5.02(d), then the last preceding Holder of such Residual
Certificate that was in compliance with the provisions of this
Section 5.02(d) shall be restored, to the extent permitted by law,
to all rights as Holder thereof retroactive to the date of
registration of such Transfer of such Residual Certificate. None of
the Trustee, the Master Servicer or the Certificate Registrar shall
be under any liability to any Person for any registration of
Transfer of a Residual Certificate that is in fact not permitted by
this Section 5.02(d) or for making any payments due on such
Certificate to the Holder thereof or for taking any other action
with respect to such Holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this
Section 5.02(d), then, to the extent that the retroactive
restoration of the rights of the preceding Holder of such Residual
Certificate as described in clause (ii)(A) above shall be invalid,
illegal or unenforceable, the Certificate Registrar shall have the
right, without notice to the Holder or any prior Holder of such
Residual Certificate, to cause the transfer of such Residual
Certificate to a Permitted Transferee on such terms as the
Certificate Registrar may choose. Such purported Transferee shall
promptly endorse and deliver such Residual Certificate in accordance
with the instructions of the Certificate Registrar. Such Permitted
Transferee may be the Certificate Registrar itself or any Affiliate
of the Certificate Registrar. Any proceeds of such sale, net of the
commissions (which may include commissions payable to the
Certificate Registrar or its Affiliates), expenses and taxes due, if
any, will be remitted by the Paying Agent to such purported
Transferee. The terms and conditions of any sale
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under this clause (ii)(B) shall be determined in the sole discretion
of the Certificate Registrar, and the Certificate Registrar shall
not be liable to any Person having an Ownership Interest in a
Residual Certificate as a result of its exercise of such discretion.
(iii) The Certificate Registrar shall make available to the
Internal Revenue Service and to those Persons specified by the REMIC
Provisions any information available to it which is necessary to
compute any tax imposed (A) as a result of the Transfer of an
Ownership Interest in a Residual Certificate to any Person who is a
Disqualified Organization, including the information described in
Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with
respect to the "excess inclusions" of such Residual Certificate and
(B) as a result of any regulated investment company, real estate
investment trust, common trust fund, partnership, trust, estate or
organization described in Section 1381 of the Code that holds an
Ownership Interest in a Residual Certificate having as among its
record holders at any time any Person which is a Disqualified
Organization, and the Master Servicer and the Special Servicer shall
furnish to the Certificate Registrar all information in its
possession necessary for the Certificate Registrar to discharge such
obligation. The Person holding such Ownership Interest shall be
responsible for the reasonable compensation of the Certificate
Registrar, the Master Servicer and the Special Servicer for
providing such information.
(iv) The provisions of this Section 5.02(d) set forth prior to
this clause (iv) may be modified, added to or eliminated, provided
that there shall have been delivered to the Certificate Registrar
and the Master Servicer the following:
(A) written confirmation from each Rating Agency to the
effect that the modification of, addition to or elimination of
such provisions will not cause such Rating Agency to qualify,
downgrade or withdraw its then-current rating of any Class of
Certificates; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Certificate Registrar and the Master
Servicer, obtained at the expense of the party seeking such
modification of, addition to or elimination of such provisions
(but in no event at the expense of the Trust Fund), to the
effect that doing so will not cause either of REMIC I, REMIC
II or REMIC III to (x) cease to qualify as a REMIC or (y) be
subject to an entity-level tax caused by the Transfer of any
Residual Certificate to a Person which is not a Permitted
Transferee, or cause a Person other than the prospective
Transferee to be subject to a REMIC- related tax caused by the
Transfer of a Residual Certificate to a Person that is not a
Permitted Transferee.
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(e) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged
for other Certificates of authorized denominations of the same Class of a like
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the
Certificate Registrar shall execute and the Authenticating Agent shall
authenticate and deliver the Certificates which the Certificateholder making the
exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
(j) Upon request, the Certificate Registrar shall provide to the
Master Servicer, the Special Servicer and the Depositor notice of each transfer
of a Certificate and shall provide to each such Person with an updated copy of
the Certificate Register.
SECTION 5.03. Book-Entry Certificates.
(a) Each Class of Regular Certificates shall initially be issued as
one or more Certificates registered in the name of the Depository or its nominee
and, except as provided in Section 5.03(c) below, transfer of such Certificates
may not be registered by the Certificate Registrar unless such transfer is to a
successor Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. Such Certificate Owners
shall hold and transfer their respective Ownership Interests in and to such
Certificates through the book-entry facilities of the Depository and, except as
provided in Section 5.03(c) below, shall not be entitled to definitive, fully
registered Certificates ("Definitive Certificates") in respect of such
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Ownership Interests. All transfers by Certificate Owners of their respective
Ownership Interests in the Book-Entry Certificates shall be made in accordance
with the procedures established by the Depository Participant or brokerage firm
representing each such Certificate Owner. Each Depository Participant shall only
transfer the Ownership Interests in the Book-Entry Certificates of Certificate
Owners it represents or of brokerage firms for which it acts as agent in
accordance with the Depository's normal procedures.
(b) The Trustee, the Master Servicer, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to a Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to a Class of Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same. Upon surrender to the Certificate Registrar of the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, at the Depositor's expense, and the Authenticating
Agent shall authenticate and deliver, the Definitive Certificates in respect of
such Class to the Certificate Owners identified in such instructions. The
Depositor shall provide the Certificate Registrar with an adequate inventory of
Definitive Certificates. None of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates for purposes of evidencing ownership of any Class of Registered
Certificates, the registered holders of such Definitive Certificates shall be
recognized as Certificateholders hereunder and, accordingly, shall be entitled
directly to receive payments on, to exercise Voting Rights with respect to, and
to transfer and exchange such Definitive Certificates.
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(d) Notwithstanding any other provisions contained herein, neither
the Trustee nor the Certificate Registrar shall have any responsibility
whatsoever to monitor or restrict the transfer of ownership interests in any
Certificate (including but not limited to any NonRegistered Certificate or any
Subordinated Certificate) which interests are transferable through the
book-entry facilities of the Depository.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be required by them to save each of them harmless, then, in the absence of
actual notice to the Trustee or the Certificate Registrar that such Certificate
has been acquired by a bona fide purchaser, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
new Certificate of the same Class and like Percentage Interest. Upon the
issuance of any new Certificate under this Section, the Trustee and the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) connected therewith. Any replacement Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the applicable REMIC created hereunder, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agent of any of them may treat the Person in whose
name any Certificate is registered as of the related Record Date as the owner of
such Certificate for the purpose of receiving distributions pursuant to Section
4.01 and may treat the person whose name each Certificate is registered as of
the date of determination as the owner of such Certificate for all other
purposes whatsoever and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Registrar or any agent of any of them
shall be affected by notice to the contrary.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE CONTROLLING CLASS REPRESENTATIVE
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SECTION 6.01. Liability of Depositor, Master Servicer and Special
Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
SECTION 6.02. Merger, Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer.
Subject to the following paragraph, the Depositor and the Special
Servicer shall each keep in full effect its existence, rights and franchises as
a corporation under the laws of the jurisdiction of its incorporation or
organization, and each will obtain and preserve its qualification to do business
as a foreign corporation in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this Agreement,
the Certificates or any of the Mortgage Loans and to perform its respective
duties under this Agreement, and the Master Servicer shall keep in full effect
its existence and rights as a national banking association under the laws of the
United States.
The Depositor, the Master Servicer or the Special Servicer may be
merged or consolidated with or into any Person (other than the Trustee), or
transfer all or substantially all of its assets (which may be limited to all or
substantially all of its assets related to commercial mortgage loan servicing)
to any Person, in which case any Person resulting from any merger or
consolidation to which the Depositor, the Master Servicer or the Special
Servicer shall be a party, or any Person succeeding to the business (which may
be limited to the commercial loan servicing business) of the Depositor, the
Master Servicer or the Special Servicer, shall be the successor of the
Depositor, the Master Servicer or the Special Servicer, as the case may be,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided, however, that no successor or surviving Person shall
succeed to the rights of the Master Servicer or the Special Servicer unless (i)
as evidenced in writing by the Rating Agencies, such succession will not result
in qualification, downgrading or withdrawal of the ratings then assigned by the
Rating Agencies to any Class of Certificates and (ii) such successor or
surviving Person makes the applicable representations and warranties set forth
in Section 3.23.
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer
and Special Servicer.
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any liability to the Trust Fund, the Trustee or the
Certificateholders for any action taken, or not taken, in good faith pursuant to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Depositor, the Master Servicer or the Special
Servicer against any liability to the Trust Fund, the Trustee or the
Certificateholders for the breach of a
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representation, warranty or covenant made herein by such party, or against any
expense or liability specifically required to be borne by such party without
right of reimbursement pursuant to the terms hereof, or against any liability
which would otherwise be imposed by reason of misfeasance, bad faith or
negligence in the performance of obligations or duties hereunder. The Depositor,
the Master Servicer, the Special Servicer and any director, officer, employee or
agent of the Depositor, the Master Servicer or the Special Servicer may rely in
good faith on any document of any kind which, prima facie, is properly executed
and submitted by any Person respecting any matters arising hereunder. The
Depositor, the Master Servicer, the Special Servicer and any director, member,
manager, officer, employee or agent of the Depositor, the Master Servicer or the
Special Servicer shall be indemnified and held harmless by the Trust Fund
against any loss, liability or reasonable expense incurred in connection with
this Agreement or the Certificates (including, without limitation, the
distribution of reports and information as contemplated by this Agreement),
other than any loss, liability or expense: (i) specifically required to be borne
by such party without right of reimbursement pursuant to the terms hereof
(including without limitation, those expenses set forth in Section 3.11(b) and
the last sentence of the definition of Servicing Advances); (ii) incurred in
connection with any breach of a representation, warranty or covenant made
herein; or (iii) incurred by reason of willful misfeasance, bad faith or
negligence in the performance of obligations or duties hereunder. None of the
Depositor, the Master Servicer or the Special Servicer shall be under any
obligation to appear in, prosecute or defend any legal action unless such action
is related to its respective duties under this Agreement and, unless it is
specifically required hereunder to bear the costs of such legal action, in its
opinion does not involve it in any ultimate expense or liability; provided,
however, that the Depositor, the Master Servicer or the Special Servicer may in
its discretion undertake (and, pursuant to Section 3.25(e) the Special Servicer
shall undertake as to the Controlling Class Representative) any such action
which it may deem necessary or desirable with respect to the enforcement and/or
protection of the rights and duties of the parties hereto and the interests of
the Certificateholders hereunder. In such event, the legal expenses and costs of
such action, and any liability resulting therefrom, shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Master Servicer and the
Special Servicer shall be entitled to be reimbursed therefor from the
Certificate Account as provided in Section 3.05. In no event shall the Master
Servicer or the Special Servicer be liable or responsible for any action taken
or omitted to be taken by the other of them or by the Depositor, the Trustee or
any Certificateholder, subject to the provisions of the last paragraph of
Section 8.05.
SECTION 6.04. Resignation of Master Servicer and the Special
Servicer.
The Master Servicer and, subject to Section 6.09, the Special
Servicer may resign from the obligations and duties hereby imposed on it, upon a
determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this
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Agreement). Any such determination requiring the resignation of the Master
Servicer or the Special Servicer, as applicable, shall be evidenced by an
Opinion of Counsel to such effect which shall be delivered to the Trustee.
Unless applicable law requires the Master Servicer's or Special Servicer's
resignation to be effective immediately, and the Opinion of Counsel delivered
pursuant to the prior sentence so states, no such resignation shall become
effective until the Trustee or other successor shall have assumed the
responsibilities and obligations of the resigning party in accordance with
Section 7.02 hereof. The Master Servicer and the Special Servicer shall have the
right to resign at any other time provided that (i) a willing successor thereto
has been found by the Master Servicer or Special Servicer, as applicable (ii)
each of the Rating Agencies confirms in writing that the successor's appointment
will not result in a withdrawal, qualification or downgrade of any rating or
ratings assigned to any Class of Certificates, (iii) the resigning party pays
all costs and expenses in connection with such transfer, and (iv) the successor
accepts appointment prior to the effectiveness of such resignation. Neither the
Master Servicer nor the Special Servicer shall be permitted to resign except as
contemplated above in this Section 6.04.
Consistent with the foregoing, neither the Master Servicer nor the
Special Servicer shall, except as expressly provided herein, assign or transfer
any of its rights, benefits or privileges hereunder to any other Person, or,
except as provided in Sections 3.22 and 4.06, delegate to or subcontract with,
or authorize or appoint any other Person to perform any of the duties, covenants
or obligations to be performed by it hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer or the Special Servicer are
transferred to a successor thereto, the Master Servicing Fee or the Special
Servicing Fee, as the case may be, that accrues pursuant hereto from and after
the date of such transfer shall be payable to such successor.
SECTION 6.05. Rights of Depositor and Trustee in Respect of Master
Servicer and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor, the Underwriters and the Trustee, upon reasonable notice, during
normal business hours access to all records maintained thereby in respect of its
rights and obligations hereunder and access to officers thereof responsible for
such obligations. Upon reasonable request, the Master Servicer and the Special
Servicer shall each furnish the Depositor, the Underwriters and the Trustee with
its most recent publicly available financial statements and such other
information as it possesses, and which it is not prohibited by applicable law or
contract from disclosing, regarding its business, affairs, property and
condition, financial or otherwise, except to the extent such information
constitutes proprietary information or is subject to a privilege under
applicable law. The Depositor may, but is not obligated to, enforce the
obligations of the Master Servicer and the Special Servicer hereunder and may,
but is not obligated to, perform, or cause a designee to perform, any defaulted
obligation of the Master Servicer or Special Servicer hereunder or exercise the
rights of the Master Servicer and the Special Servicer hereunder; provided,
however, that neither the Master Servicer nor the Special Servicer shall be
relieved of any of its obligations hereunder by virtue of such performance by
the Depositor or its designee and, further provided, that the Depositor may not
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exercise any right pursuant to Section 7.01 to terminate the Master Servicer or
the Special Servicer as a party to this Agreement. The Depositor shall not have
any responsibility or liability for any action or failure to act by the Master
Servicer or the Special Servicer and is not obligated to supervise the
performance of the Master Servicer or the Special Servicer under this Agreement
or otherwise.
SECTION 6.06. Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer shall
each furnish such reports, certifications and information as are reasonably
requested by the Trustee in order to enable it to perform its duties hereunder.
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Master Servicer in order to enable it to perform its duties hereunder.
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate
with Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Special Servicer in order to enable it to perform its duties hereunder.
SECTION 6.09. Designation of Special Servicer by the Controlling
Class.
The Holder or Holders of the Certificates evidencing a majority of
the Voting Rights allocated to the Controlling Class may at any time and from
time to time designate a Person meeting the requirements set forth in Section
6.04 (including, without limitation, Rating Agency confirmation) to serve as
Special Servicer hereunder and to replace any existing Special Servicer or any
Special Servicer that has resigned or otherwise ceased to serve as Special
Servicer; provided that such Holder or Holders shall pay all costs related to
the transfer of servicing if the Special Servicer is replaced other than due to
an Event of Default. Such Holder or Holders may also select a Controlling Class
Representative that may advise and direct the Special Servicer and whose
approval is required for certain actions, as described herein. Such Holder or
Holders shall so designate a Person to serve as replacement Special Servicer by
the delivery to the Trustee, the Master Servicer and the existing Special
Servicer of a written notice stating such designation. The Trustee shall,
promptly after receiving any such notice, deliver to the Rating Agencies an
executed
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Notice and Acknowledgment in the form attached hereto as Exhibit J-1. If such
Holders have not replaced the Special Servicer within 30 days of such Special
Servicer's resignation or the date such Special Servicer has ceased to serve in
such capacity, the Trustee shall designate a successor Special Servicer meeting
the requirements set forth in Section 6.04. Any designated Person shall become
the Special Servicer, subject to satisfaction of the other conditions set forth
below, on the date that the Trustee shall have received written confirmation
from all of the Rating Agencies that the appointment of such Person will not
result in the qualification, downgrading or withdrawal of the rating or ratings
assigned to one or more Classes of the Certificates. The appointment of such
designated Person as Special Servicer shall also be subject to receipt by the
Trustee of (1) an Acknowledgment of Proposed Special Servicer in the form
attached hereto as Exhibit J-2, executed by the designated Person, and (2) an
Opinion of Counsel (at the expense of the Person designated to become the
Special Servicer) to the effect that the designation of such Person to serve as
Special Servicer is in compliance with this Section 6.09 and all other
applicable provisions of this Agreement, that upon the execution and delivery of
the Acknowledgment of Proposed Special Servicer the designated Person shall be
bound by the terms of this Agreement and that this Agreement shall be
enforceable against the designated Person in accordance with its terms. Any
existing Special Servicer shall be deemed to have resigned simultaneously with
such designated Person's becoming the Special Servicer hereunder; provided,
however, that the resigning Special Servicer shall continue to be entitled to
receive all amounts accrued or owing to it under this Agreement on or prior to
the effective date of such resignation, whether in respect of Servicing Advances
or otherwise, and it shall continue to be entitled to the benefits of Section
6.03 notwithstanding any such resignation. Such resigning Special Servicer shall
cooperate with the Trustee and the replacement Special Servicer in effecting the
termination of the resigning Special Servicer's responsibilities and rights
hereunder, including, without limitation, the transfer within two Business Days
to the replacement Special Servicer for administration by it of all cash amounts
that shall at the time be or should have been credited by the Special Servicer
to the Certificate Account or the REO Account or delivered to the Master
Servicer or that are thereafter received with respect to Specially Serviced
Mortgage Loans and REO Properties.
SECTION 6.10. Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer or an Affiliate of the Master Servicer or the
Special Servicer or an Affiliate of the Special Servicer may become the Holder
of (or, in the case of a Book- Entry Certificate, Certificate Owner with respect
to) any Certificate with (except as set forth in the definition of
"Certificateholder") the same rights it would have if it were not the Master
Servicer or the Special Servicer or an Affiliate thereof. If, at any time during
which the Master Servicer or the Special Servicer or an Affiliate of the Master
Servicer or the Special Servicer is the Holder of (or, in the case of a
Book-Entry Certificate, Certificate Owner with respect to) any Certificate, the
Master Servicer or the Special Servicer proposes to take action (including for
this purpose, omitting to take action) that (i) is not expressly prohibited by
the terms hereof and would not, in the Master Servicer's or the Special
Servicer's good faith judgment, violate the Servicing
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Standard, and (ii) if taken, might nonetheless, in the Master Servicer's or the
Special Servicer's reasonable, good faith judgment, be considered by other
Persons to violate the Servicing Standard, then the Master Servicer or the
Special Servicer may (but need not) seek the approval of the Certificateholders
to such action by delivering to the Trustee a written notice that (a) states
that it is delivered pursuant to this Section 6.10, (b) identifies the
Percentage Interest in each Class of Certificates beneficially owned by the
Master Servicer or the Special Servicer or an Affiliate of the Master Servicer
or the Special Servicer, and (c) describes in reasonable detail the action that
the Master Servicer or the Special Servicer proposes to take. The Trustee, upon
receipt of such notice, shall forward it to the Certificateholders (other than
the Master Servicer and its Affiliates or the Special Servicer and its
Affiliates, as appropriate), together with such instructions for response as the
Trustee shall reasonably determine. If at any time Certificateholders holding
greater than 50% of the Voting Rights of all Certificateholders (calculated
without regard to the Certificates beneficially owned by the Master Servicer or
its Affiliates or the Special Servicer or its Affiliates) shall have failed to
object in writing to the proposal described in the written notice, and if the
Master Servicer or the Special Servicer shall act as proposed in the written
notice within thirty (30) days, such action shall be deemed to comply with, but
not modify, the Servicing Standard. The Trustee shall be entitled to
reimbursement from the Master Servicer or the Special Servicer, as applicable,
for the reasonable expenses of the Trustee incurred pursuant to this paragraph.
It is not the intent of the foregoing provision that the Master Servicer or the
Special Servicer be permitted to invoke the procedure set forth herein with
respect to routine servicing matters arising hereunder, but rather in the case
of unusual circumstances.
SECTION 6.11. The Controlling Class Representative.
The Controlling Class Representative will be entitled to advise the
Special Servicer with respect to the following actions of the Special Servicer,
and notwithstanding anything herein to the contrary except as necessary or
advisable to avoid an Adverse REMIC Event and except as set forth in, and in any
event subject to, the second paragraph of this Section 6.11, the Special
Servicer will not be permitted to take any of the following actions as to which
the Controlling Class Representative has objected in writing within ten Business
Days of being notified thereof (provided that if such written objection has not
been received by the Special Servicer within such ten Business Day period, then
the Controlling Class Representative's approval will be deemed to have been
given),provided, however, if the Controlling Class Representative and the
Special Servicer cannot agree on a course of action within 60 days of the
occurrence of the event under discussion the Special Servicer shall implement
its proposed course of action:
(i) any foreclosure upon or comparable conversion (which may
include acquisitions of an REO Property) of the ownership of
properties securing such of the Specially Serviced Mortgage Loans as
come into and continue in default;
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(ii) any modification or waiver of a monetary term of a
Mortgage Loan other than a modification consisting of the extension
of the maturity date of a Mortgage Loan for one year or less;
(iii) any proposed sale of a defaulted Mortgage Loan or REO
Property (other than in connection with the termination of the Trust
Fund);
(iv) any determination to bring an REO Property into
compliance with applicable environmental laws or to otherwise
address Hazardous Materials located at an REO Property;
(v) any acceptance of substitute or additional collateral for
a Mortgage Loan unless permitted by the underlying loan documents;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance"
clause; and
(vii) any acceptance of an assumption agreement releasing a
borrower from liability under a Mortgage Loan.
In addition, the Controlling Class Representative may direct the
Special Servicer to take, or to refrain from taking, such other actions as the
Controlling Class Representative may deem advisable or as to which provision is
otherwise made herein; provided that notwithstanding anything herein to the
contrary no such direction, and no objection contemplated by the preceding
paragraph, may require or cause the Special Servicer to violate any provision of
this Agreement or the REMIC Provisions, including without limitation the Special
Servicer's obligation to act in accordance with the Servicing Standard, or
expose the Master Servicer, the Special Servicer, the Trust Fund or the Trustee
to liability, or materially expand the scope of the Special Servicer's
responsibilities hereunder or cause the Special Servicer to act, or fail to act,
in a manner which in the reasonable judgment of the Special Servicer is not in
the best interests of the Certificateholders.
The Controlling Class Representative will have no liability to the
Certificateholders for any action taken, or for refraining from the taking of
any action, in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that the Controlling Class Representative will not be
protected against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of negligent disregard of obligations or duties. By its acceptance of a
Certificate, each Certificateholder confirms its understanding that the
Controlling Class Representative may take actions that favor the interests of
one or more Classes of the Certificates over other Classes of the Certificates,
and that the Controlling Class Representative may have special relationships and
interests that conflict with those of Holders of some Classes of the
Certificates, that the Controlling
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Class Representative may act solely in the interests of the Holders of the
Controlling Class, that the Controlling Class Representative does not have any
duties to the Holders of any Class of Certificates other than the Controlling
Class, that the Controlling Class Representative shall not be deemed to have
been negligent or reckless, or to have acted in bad faith or engaged in willful
misfeasance, by reason of its having acted solely in the interests of the
Holders of the Controlling Class, and that the Controlling Class Representative
shall have no liability whatsoever for having so acted, and no Certificateholder
may take any action whatsoever against the Controlling Class Representative or
any director, officer, employee, agent or principal thereof for having so acted.
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into the
Certificate Account, or to deposit into, or remit to the Paying
Agent for deposit into, the Distribution Account, any amount (other
than a P&I Advance) required to be so deposited or remitted by it
under this Agreement; provided, however, that if such failure to
deposit or remit occurs only once in any consecutive twelve-month
period, which failure is corrected by 10:00 a.m., New York City time
on the related Distribution Date, then with respect to such one
failure only, a default shall be deemed not to have occurred;
provided further, however, that to the extent the Master Servicer
does not timely make such remittances, the Master Servicer shall pay
the Trustee for the account of the Trustee interest on any amount
not timely remitted at the Prime Rate from and including the
applicable required remittance date to but not including the date
such remittance is actually made; or
(ii) any failure by the Special Servicer to deposit into the
REO Account or to deposit into, or to remit to the Master Servicer
for deposit into, the Certificate Account, any amount required to be
so deposited or remitted under this Agreement; or
(iii) any failure by the Master Servicer to timely make any
Servicing Advance required to be made by it hereunder, which
Servicing Advance remains unmade for a period of five Business Days
following the date on which notice shall have been given to the
Master Servicer, as the case may be, by the Trustee as provided in
Section 3.03(c); or
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(iv) any failure on the part of the Master Servicer or the
Special Servicer duly to observe or perform in any material respect
any other of the covenants or agreements on the part of the Master
Servicer or the Special Servicer, as the case may be, contained in
this Agreement which continues unremedied for a period of 30 days
after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Master
Servicer and the Special Servicer, as the case may be, by any other
party hereto or to the Master Servicer or the Special Servicer, as
the case may be (with a copy to each other party hereto), by the
Holders of Certificates entitled to at least 25% of the Voting
Rights, provided, however, that with respect to any such failure
which is not curable within such 30-day period, the Master Servicer
or the Special Servicer, as the case may be, shall have an
additional cure period of thirty (30) days to effect such cure so
long as the Master Servicer or the Special Servicer, as the case may
be, has commenced to cure such failure within the initial 30-day
period and has provided the Trustee with an Officer's Certificate
certifying that it has diligently pursued, and is continuing to
pursue, a full cure; or
(v) any breach on the part of the Master Servicer or the
Special Servicer of any representation or warranty contained in this
Agreement that materially and adversely affects the interests of any
Class of Certificateholders and which continues unremedied for a
period of 30 days after the date on which notice of such breach,
requiring the same to be remedied, shall have been given to the
Master Servicer or the Special Servicer, as the case may be, by any
other party hereto or to the Master Servicer or the Special
Servicer, as the case may be (with a copy to each other party
hereto), by the Holders of Certificates entitled to at least 25% of
the Voting Rights, provided, however, that with respect to any
failure which is not curable within such 30-day period, the Master
Servicer or the Special Servicer, as the case may be, shall have an
additional cure period of thirty (30) days so long as the Master
Servicer or the Special Servicer, as the case may be, has commenced
to cure within the initial 30-day period and provided the Trustee
with an Officer's Certificate certifying that it has diligently
pursued, and is continuing to pursue, a full cure; or
(vi) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency
or similar law for the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy,
insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the
Master Servicer or the Special Servicer and such decree or
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order shall have remained in force undischarged or unstayed for a
period of 60 days; or
(vii) the Master Servicer or the Special Servicer shall
consent to the appointment of a conservator, receiver, liquidator,
trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to it or of or relating to all or
substantially all of its property; or
(viii) the Master Servicer or the Special Servicer shall admit
in writing its inability to pay its debts generally as they become
due, file a petition to take advantage of any applicable bankruptcy,
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the
foregoing; or
(ix) the consolidated net worth of the Master Servicer and of
its direct or indirect parent, determined in accordance with
generally accepted accounting principles, shall decline to less than
$15,000,000; or
(x) the Trustee shall have received a written notice from DCR
(which the Trustee shall promptly forward to the Master Servicer or
the Special Servicer, as applicable) to the effect that if the
Master Servicer or the Special Servicer, as applicable, continues to
act in such capacity, the rating or ratings on one or more Classes
of Certificates will be downgraded or withdrawn if such Master
Servicer or the Special Servicer, as applicable, is not replaced; or
(xi) the Master Servicer or the Special Servicer, as
applicable, is not an "approved" master servicer or special
servicer, as applicable, by either of the Rating Agencies; or
(xii) the Master Servicer shall fail to remit to the Paying
Agent for deposit into the Distribution Account, on any P&I Advance
Date, the full amount of P&I Advances required to be made on such
date, which failure continues unremedied until 10:00 a.m. New York
City time on the next Business Day succeeding such P&I Advance Date;
provided, however, that to the extent the Master Servicer does not
timely make such remittances, the Master Servicer shall pay the
Trustee for the account of the Trustee interest on any amount not
timely remitted at the Prime Rate from and including the applicable
required remittance date to but not including the date such
remittance is actually made.
When a single entity acts as the Master Servicer and the Special Servicer, an
Event of Default in one capacity shall constitute an Event of Default in the
other capacity.
(b) If any Event of Default described in clauses (i) - (ix), (xi)
and (xii) of subsection (a) above shall occur with respect to the Master
Servicer or the Special Servicer (in
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either case, for purposes of this Section 7.01(b), the "Defaulting Party") and
shall be continuing, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Trustee may, and at the
written direction of the Holders of Certificates entitled to at least 25% of the
Voting Rights, the Trustee shall, by notice in writing to the Defaulting Party
(with a copy of such notice to each other party hereto and the Rating Agencies)
terminate all of the rights and obligations (but not the liabilities for actions
and omissions occurring prior thereto) of the Defaulting Party under this
Agreement and in and to the Trust Fund, other than its rights as a
Certificateholder hereunder. If an Event of Default described in clause (x) of
subsection (a) above shall occur with respect to the Master Servicer or, if
applicable, the Special Servicer (in either case, under such circumstances, for
purposes of this Section 7.01(b), the "Defaulting Party"), the Trustee shall, by
notice in writing (to be sent immediately by facsimile transmission) to the
Defaulting Party (with a copy of such notice to each other party hereto and the
Rating Agencies), terminate all of the rights and obligations (but not the
liabilities for actions and omissions occurring prior thereto) of the Defaulting
Party under this Agreement and in and to the Trust Fund, other than its rights,
if any, as a Certificateholder hereunder. From and after the receipt by the
Defaulting Party of such written notice of termination, all authority and power
of the Defaulting Party under this Agreement, whether with respect to the
Certificates (other than as a holder of any Certificate) or the Mortgage Loans
or otherwise, shall pass to and be vested in the Trustee pursuant to and under
this Section, and, without limitation, the Trustee is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer and the Special Servicer
each agree that, if it is terminated pursuant to this Section 7.01(b), it shall
promptly (and in any event no later than ten Business Days subsequent to its
receipt of the notice of termination) provide the Trustee with all documents and
records, including those in electronic form, requested thereby to enable the
Trustee to assume the Master Servicer's or Special Servicer's, as the case may
be, functions hereunder, and shall cooperate with the Trustee in effecting the
termination of the Master Servicer's or Special Servicer's, as the case may be,
responsibilities and rights hereunder, including, without limitation, (i) the
immediate transfer to the Trustee or a successor Master or Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Master Servicer to the Certificate Account, the
Distribution Account, a Servicing Account or a Reserve Account (if the Master
Servicer is the Defaulting Party) or that are thereafter received by or on
behalf of it with respect to any Mortgage Loan or (ii) the transfer within two
Business Days to the Trustee or a successor Special Servicer for administration
by it of all cash amounts that shall at the time be or should have been credited
by the Special Servicer to the REO Account, the Certificate Account, a Servicing
Account or a Reserve Account or delivered to the Master Servicer (if the Special
Servicer is the Defaulting Party) or that are thereafter received by or on
behalf of it with respect to any Mortgage Loan or REO Property (provided,
however, that the Master Servicer and the Special Servicer each shall, if
terminated pursuant to this Section 7.01(b), continue to be entitled to receive
all amounts
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accrued or owing to it under this Agreement on or prior to the date of such
termination, whether in respect of Advances or otherwise, and it shall continue
to be entitled to the benefits of Section 6.03 notwithstanding any such
termination). Any cost or expenses in connection with any actions to be taken by
the Master Servicer, the Special Servicer or the Trustee pursuant to this
paragraph shall be borne by the Defaulting Party and if not paid by the
Defaulting Party within 90 days after the presentation of reasonable
documentation of such costs and expenses, such expense shall be reimbursed by
the Trust Fund; provided, however, that the Defaulting Party shall not thereby
be relieved of its liability for such expenses. If and to the extent that the
Defaulting Party has not reimbursed such costs and expenses, the Trustee shall
have an affirmative obligation to take all reasonable actions to collect such
expenses on behalf of and at the expense of the Trust Fund. For purposes of this
Section 7.01 and of Section 7.03(b), the Trustee shall not be deemed to have
knowledge of an event which constitutes, or which with the passage of time or
notice, or both, would constitute an Event of Default described in clauses
(i)-(viii) of subsection (a) above unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless notice of any event which is in fact such
an Event of Default is received by the Trustee and such notice references the
Certificates, the Trust Fund or this Agreement.
The Master Servicer further agrees that if it is terminated pursuant
to this Section 7.01(b) or if it resigns under the circumstances permitted under
Section 6.04, or if for any other reason it is no longer the Master Servicer, it
shall promptly (and in any event no later than five Business Days after its
receipt of the notice of termination or after the effectiveness of such
resignation) (i) assign its rights under the Semi-Annual Loan Swap Agreement to
the Trustee, as successor Master Servicer, or (ii) at the Depositor's expense
(to the extent such expense exceeds .145% per annum based on the aggregate
principal balance of the Semi-Annual Mortgage Loans), cause a qualified
substitute counterparty (possessing a long-term counterparty rating of at least
"A+" by DCR (if then rated by DCR) and"A+" by Standard & Poor's to enter into a
swap agreement with the Trustee, as successor Master Servicer, on terms
substantially equivalent to those set forth in the Semi-Annual Loan Swap
Agreement. The Master Servicer hereby pledges its rights under the Semi-Annual
Loan Swap Agreement to the Trustee, as successor Master Servicer, to secure its
promise to make the assignment described in the immediately preceding sentence.
In no event will any expenses related to or amounts due under the Semi-Annual
Loan Swap Agreement be an obligation of or reimbursable from the Trust Fund.
(c) If the Master Servicer is terminated solely due to an Event of
Default under Section 7.01(a)(x) or (xi), and if the terminated Master Servicer
provides the Trustee with the appropriate "request for proposal" materials
within the five Business Days after such termination, then the Trustee shall
promptly thereafter (using such "request for proposal" materials provided by the
terminated Master Servicer) solicit good faith bids for the rights to master
service the Mortgage Loans under this Agreement from at least three (3) Persons
qualified to act as Master Servicer hereunder in accordance with Sections 6.02
and 7.02 (any such Person so qualified, a "Qualified Bidder") or, if three (3)
Qualified Bidders cannot be located, then from as many Persons as the Trustee
can determine are Qualified Bidders; provided that, at the Trustee's request,
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the terminated Master Servicer shall supply the Trustee with the names of
Persons from whom to solicit such bids; and provided, further, that the Trustee
shall not be responsible if less than three (3) or no Qualified Bidders submit
bids for the right to master service the Mortgage Loans under this Agreement.
The bid proposal shall require any Successful Bidder (as defined below), as a
condition of such bid, to enter into this Agreement as successor Master
Servicer, and to agree to be bound by the terms hereof, within 45 days after the
termination of Master Servicer. The Trustee shall solicit bids (i) on the basis
of such successor Master Servicer retaining all Sub-Servicers to continue the
primary servicing of the Mortgage Loans pursuant to the terms of the respective
Sub-Servicing Agreements and to enter into a Sub-Servicing Agreement with the
terminated Master Servicer to service each of the Mortgage Loans not subject to
a Sub-Servicing Agreement at a servicing fee rate per annum equal to the Master
Servicing Fee Rate minus 2.5 basis points per Mortgage Loan serviced (each, a
"Servicing-Retained Bid") and (ii) on the basis of terminating each
Sub-Servicing Agreement and Sub-Servicer that it is permitted to terminate in
accordance with Section 3.22 (each, a "Servicing-Released Bid"). The Trustee
shall select the Qualified Bidder with the highest cash Servicing-Retained Bid
(or, if none, the highest cash Servicing Released Bid) (the "Successful Bidder")
to act as successor Master Servicer hereunder. The Trustee shall direct the
Successful Bidder to enter into this Agreement as successor Master Servicer
pursuant to the terms hereof (and, if the successful bid was a
Servicing-Retained Bid, to enter into a Sub- Servicing Agreement with the
terminated Master Servicer as contemplated above), no later than 45 days after
the termination of the Master Servicer.
Upon the assignment and acceptance of the master servicing rights
hereunder to and by the Successful Bidder, the Trustee shall remit or cause to
be remitted (i) if the successful bid was a Servicing-Retained Bid, to the
terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing- Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
If the Successful Bidder has not entered into this Agreement as
successor Master Servicer within 45 days after the Trustee was appointed as
successor Master Servicer or no Successful Bidder was identified within such
45-day period, the terminated Master Servicer shall reimburse the Trustee for
all reasonable "out-of-pocket" expenses incurred by the Trustee in connection
with such bid process and the Trustee shall have no further obligations under
this Section 7.01(c). The Trustee thereafter may act or may select a successor
to act as Master Servicer hereunder in accordance with Section 7.02.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04 or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, unless a successor is appointed pursuant to
Section 6.04, be the successor in all respects to the
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Master Servicer or the Special Servicer, as the case may be, in its capacity as
such under this Agreement and the transactions set forth or provided for herein
and shall have all (and the former Master Servicer or the Special Servicer, as
the case may be, shall cease to have any) of the responsibilities, duties and
liabilities (except as provided in the next sentence) of the Master Servicer or
the Special Servicer, as the case may be, arising thereafter, including, without
limitation, if the Master Servicer is the resigning or terminated party, the
Master Servicer's obligation to make P&I Advances, including, without
limitation, in connection with any termination of the Master Servicer for an
Event of Default described in clause 7.01(a)(xii), the unmade P&I Advances that
gave rise to such Event of Default; provided, that if the Master Servicer is the
resigning or terminated party, and if after the Closing Date the Trustee is
prohibited by law or regulation from obligating itself to make P&I Advances (as
evidenced by an Opinion of Counsel delivered to the Depositor and the Rating
Agencies) the Trustee shall not be obligated to make such P&I Advances and
provided, further, that any failure to perform such duties or responsibilities
caused by the Master Servicer's or the Special Servicer's, as the case may be,
failure to provide information or monies required by Section 7.01 shall not be
considered a default by the Trustee hereunder. Notwithstanding anything contrary
in this Agreement, the Trustee shall in no event be held responsible or liable
with respect to any of the representations and warranties of the resigning or
terminated party (other than the Trustee) or for any losses incurred by such
resigning or terminated party pursuant to Section 3.06 hereunder nor shall the
Trustee be required to purchase any Mortgage Loan hereunder. As compensation
therefor, the Trustee shall be entitled to all fees and other compensation which
the resigning or terminated party would have been entitled to if the resigning
or terminated party had continued to act hereunder. Notwithstanding the above
and subject to its obligations under Section 3.22(d) and 7.01(b), the Trustee
may, if it shall be unwilling in its sole discretion to so act as either Master
Servicer or Special Servicer, as the case may be, or shall, if it is unable to
so act as either Master Servicer or Special Servicer, as the case may be, if the
Trustee is not approved as a master servicer or a special servicer, as the case
may be, by any of the Rating Agencies or if the Holders of Certificates entitled
to at least 51% of the Voting Rights so request in writing to the Trustee,
promptly appoint, subject to the approval of each of the Rating Agencies (as
evidenced by written confirmation therefrom to the effect that the appointment
of such institution would not cause the qualification, downgrading or withdrawal
of the then current rating on any Class of Certificates) or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution that meets the requirements of Section 6.02 (including, without
limitation, rating agency confirmation); provided, however, that in the case of
a resigning or terminated Special Servicer, such appointment shall be subject to
the rights of the Holders of Certificates evidencing a majority of the Voting
Rights allocated to the Controlling Class to designate a successor pursuant to
Section 6.09. Except with respect to an appointment provided below, no
appointment of a successor to the Master Servicer or the Special Servicer
hereunder shall be effective until the assumption of the successor to such party
of all its responsibilities, duties and liabilities under this Agreement.
Pending appointment of a successor to the Master Servicer or the Special
Servicer hereunder, the Trustee shall act in such capacity as hereinabove
provided. Notwithstanding the above, the Trustee shall, if the Master Servicer
is the resigning or terminated party and the Trustee
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is prohibited by law or regulation from making P&I Advances, promptly appoint
any established mortgage loan servicing institution that has a net worth of not
less than $15,000,000 and is otherwise acceptable to each Rating Agency (as
evidenced by written confirmation therefrom to the effect that the appointment
of such institution would not cause the qualification, downgrading or withdrawal
of the then current rating on any Class of Certificates), as the successor to
the Master Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer hereunder
(including, without limitation, the obligation to make P&I Advances), which
appointment will become effective immediately. In connection with any such
appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on the
Mortgage Loans as it and such successor shall agree; provided, however, that no
such compensation shall be in excess of that permitted the resigning or
terminated party hereunder. Such successor and the other parties hereto shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after a Responsible Officer of
the Trustee has notice of the occurrence of such an event, the Trustee shall
transmit by mail to the Depositor and all Certificateholders and the Rating
Agencies notice of such occurrence, unless such default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders representing at least 66-2/3% (or with respect to an
Event of Default under Section 7.01(a)(x), 100%) of the Voting Rights allocated
to the Classes of Certificates affected by any Event of Default hereunder may
waive such Event of Default; provided, however, that an Event of Default under
clauses (i), (ii) , (ix) or (x) and (xii) of Section 7.01(a) may be waived only
by all of the Certificateholders of the affected Classes. Upon any such waiver
of an Event of Default, such Event of Default shall cease to exist and shall be
deemed to have been remedied for every purpose hereunder. No such waiver shall
extend to any subsequent or other Event of Default or impair any right
consequent thereon except to the extent expressly so waived. Notwithstanding any
other provisions of this Agreement, for purposes of waiving any Event of Default
pursuant to this Section 7.04, Certificates registered in the name of the
Depositor or any
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Affiliate of the Depositor shall be entitled to Voting Rights with respect to
the matters described above.
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except with respect to an Event of Default resulting from a breach
of the covenant in Section 3.23(d), for which, subject to Section 3.23(d), the
sole remedy shall be termination of the Master Servicer or as otherwise
expressly provided in this Agreement, no remedy provided for by this Agreement
shall be exclusive of any other remedy, and each and every remedy shall be
cumulative and in addition to any other remedy, and no delay or omission to
exercise any right or remedy shall impair any such right or remedy or shall be
deemed to be a waiver of any Event of Default. Under no circumstances shall the
rights provided to the Trustee under this Section 7.05 be construed as a duty or
obligation of the Trustee.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement to the
extent specifically set forth herein. If any such instrument is found not to
conform to the requirements of this Agreement in a material manner, the Trustee
shall take such action as it
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deems appropriate to have the instrument corrected. The Trustee shall not be
responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor or the Master Servicer or the Special Servicer, and accepted by the
Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after
the curing of all such Events of Default which may have occurred,
the duties and obligations of the Trustee shall be determined solely
by the express provisions of this Agreement, the Trustee shall not
be liable except for the performance of such duties and obligations
as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against
the Trustee and, in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error
of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts if it
was required to do so;
(iii) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of Certificates
entitled to at least 25% of the Voting Rights relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement; and
(iv) The protections, immunities and indemnities afforded to
the Trustee hereunder shall also be available to it in its capacity
as Paying Agent, Authenticating Agent, Certificate Registrar, REMIC
Administrator and Custodian.
SECTION 8.02. Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01 and Article X:
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(i) the Trustee may rely upon and shall be protected in acting
or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in
accordance therewith;
(iii) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to make
any investigation of matters arising hereunder or, except as
provided in Section 10.01 or 10.02, to institute, conduct or defend
any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which may be incurred therein or
thereby; the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it; provided, however,
that nothing contained herein shall, relieve the Trustee of the
obligation, upon the occurrence of an Event of Default which has not
been cured, to exercise such of the rights and powers vested in it
by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(iv) the Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Agreement;
(v) prior to the occurrence of an Event of Default hereunder
and after the curing of all Events of Default which may have
occurred, the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested
in writing to do so by Holders of Certificates entitled to at least
25% of the Voting Rights; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making
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of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by
the terms of this Agreement, the Trustee may require reasonable
indemnity against such expense or liability as a condition to taking
any such action;
(vi) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys; provided, however, that the Trustee
shall remain responsible for all acts and omissions of such agents
or attorneys within the scope of their employment to the same extent
as it is responsible for its own actions and omissions hereunder;
(vii) the Trustee shall not be responsible for any act or
omission of the Master Servicer or the Special Servicer (unless the
Trustee is acting as Master Servicer or the Special Servicer) or the
Depositor; and
(viii) neither the Trustee nor the Certificate Registrar shall
have any obligation or duty to monitor, determine or inquire as to
compliance with any restriction on transfer imposed under Article V
under this Agreement or under applicable law with respect to any
transfer of any Certificate or any interest therein, other than to
require delivery of the certification(s) and/or Opinions of Counsel
described in said Article applicable with respect to changes in
registration of record ownership of Certificates in the Certificate
Register and to examine the same to determine substantial compliance
with the express requirements of this Agreement. The Trustee and
Certificate Registrar shall have no liability for transfers,
including transfers made through the book entry facilities of the
Depository or between or among Depository Participants or beneficial
owners of the Certificates, made in violation of applicable
restrictions except for its failure to perform its express duties in
connection with changes in registration of record ownership in the
Certificate Register.
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than
the statements attributed to the Trustee in Article II and Section 8.16 and the
signature of the Certificate Registrar and the Authenticating Agent set forth on
each outstanding Certificate, shall be taken as the statements of the Depositor
or the Master Servicer or the Special Servicer, as the case may be, and the
Trustee assumes no responsibility for their correctness. Except as set forth in
Section 8.16, the Trustee makes no representations as to the validity or
sufficiency of this Agreement or of any Certificate (other than as to the
signature of the Trustee set forth thereon) or of any Mortgage Loan or related
document. The Trustee shall not be accountable for the use or application by the
Depositor of any of the Certificates issued to it or of the proceeds of such
Certificates, or for the
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use or application of any funds paid to the Depositor in respect of the
assignment of the Mortgage Loans to the Trust Fund, or any funds deposited in or
withdrawn from the Certificate Account or any other account by or on behalf of
the Depositor, the Master Servicer or the Special Servicer. The Trustee shall
not be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by the
Depositor, the Master Servicer or the Special Servicer, and accepted by the
Trustee in good faith, pursuant to this Agreement.
SECTION 8.04. Trustee May Own Certificates.
The Trustee or any agent of the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Certificates with the same
rights (except as otherwise provided in the definition of "Certificateholder")
it would have if it were not the Trustee or such agent.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of
Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from the
general funds on deposit in the Distribution Account, prior to any distributions
to be made therefrom on such date, and pay to itself all earned but unpaid
Trustee Fees, as compensation for all services rendered by the Trustee in the
execution of the trusts hereby created and in the exercise and performance of
any of the powers and duties of the Trustee hereunder. The Trustee Fee (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) shall constitute the Trustee's sole compensation
for such services to be rendered by it.
(b) The Trustee and any director, officer, employee, affiliate,
agent or "control" person within the meaning of the Securities Act of 1933 of
the Trustee shall be entitled to be indemnified for and held harmless by the
Trust Fund against any loss, liability or reasonable "out-of-pocket" expense
(including, without limitation, costs and expenses of litigation, and of
investigation, counsel fees, damages, judgments and amounts paid in settlement)
arising out of, or incurred in connection with this Agreement, the Mortgage
Loans or the Certificates or any act of the Master Servicer or the Special
Servicer taken on behalf of the Trustee as provided for herein ("Trustee
Liability"); provided, that neither the Trustee nor any of the other above
specified Persons shall be entitled to indemnification pursuant to this Section
8.05(b) for (1) any liability specifically required to be borne thereby pursuant
to the terms hereof, or (2) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of the Trustee's
obligations and duties hereunder, or by reason of its negligent disregard of
such obligations and duties, or as may arise from a breach of any
representation, warranty or covenant of the Trustee made herein. The provisions
of this Section 8.05(b) shall survive any resignation or removal of the Trustee
and appointment of a successor trustee.
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SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be an association or a
corporation organized and doing business under the laws of the United States of
America or any State thereof or the District of Columbia, authorized under such
laws to exercise trust powers, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by federal or state
banking authority. If such association or corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such association or corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. The Trustee shall also be an entity
with a long term unsecured debt rating of at least "AA" (determined without
regard to pluses or minuses) by Standard & Poor's and "A" by DCR or such other
rating that shall not result in the qualification (if applicable), downgrading
or withdrawal of the rating or ratings assigned to one or more Classes of the
Certificates by any Rating Agency as confirmed in writing. The Trustee shall
also be an entity that (i) has not, since November 2, 1998, been, and is not, an
insider or affiliate of First Union National Bank, (ii) has not, since November
2, 1998, controlled, and does not control, First Union National Bank, (iii) has
not, since November 2, 1998, been, and is not, controlled by First Union
National Bank, (iv) has not, since November 2, 1998, been, and is not, under
common control with, First Union National Bank, and (v) does not cause the trust
created hereby to be an insider or affiliate of First Union National Bank. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 8.07; provided, that if the Trustee
shall cease to be so eligible because its combined capital and surplus is no
longer at least $100,000,000 or its long-term unsecured debt rating no longer
conforms to the requirements of the immediately preceding sentence, and if the
Trustee proposes to the other parties hereto to enter into an agreement with
(and reasonably acceptable to) each of them, and if in light of such agreement
the Trustee's continuing to act in such capacity would not (as evidenced in
writing by each Rating Agency) cause any Rating Agency to qualify, downgrade or
withdraw any rating assigned thereby to any Class of Certificates, then upon the
execution and delivery of such agreement the Trustee shall not be required to
resign, and may continue in such capacity, for so long as none of the ratings
assigned by the Rating Agencies to the Certificates is qualified (if
applicable), downgraded or withdrawn thereby. The corporation or association
serving as Trustee may have normal banking and trust relationships with the
Depositor, the Master Servicer, the Special Servicer and their respective
Affiliates.
SECTION 8.07. Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer and to all Certificateholders at their
respective addresses set forth in the Certificate Register. Upon receiving such
notice of resignation, the Master Servicer shall promptly appoint a successor
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trustee meeting the requirements in Section 8.06 and acceptable to the Depositor
and the Rating Agencies by written instrument, in duplicate, which instrument
shall be delivered to the resigning Trustee and to the successor trustee. A copy
of such instrument shall be delivered to the Depositor, the Special Servicer and
the Certificateholders by the Master Servicer. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee or Paying Agent (if different than the Trustee)
shall fail (other than by reason of the failure of either the Master Servicer or
the Special Servicer to timely perform its obligations hereunder or as a result
of other circumstances beyond the Trustee's reasonable control), to timely
deliver any report to be delivered by the Trustee pursuant to Section 4.02 and
such failure shall continue unremedied for a period of five days, or if the
Trustee or Paying Agent (if different from the Trustee) fails to make
distributions required pursuant to Section 3.05(b), 4.01 or 9.01, then the
Depositor may or if the Master Servicer or Depositor receive notice from DCR
that the Trustee is no longer acceptable and retaining the Trustee will cause a
downgrade or withdrawal by DCR of the then current rating of any Certificate
rated by DCR, then the Master Servicer shall remove the Trustee and appoint a
successor trustee, if necessary, acceptable to the Master Servicer and the
Rating Agencies by written instrument, in duplicate, which instrument shall be
delivered to the Trustee so removed and to the successor trustee. A copy of such
instrument shall be delivered to the Master Servicer, the Special Servicer and
the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor
trustee, if necessary, by written instrument or instruments, in triplicate,
signed by such Holders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered to the Master Servicer, one complete
set to the Trustee so removed and one complete set to the successor trustee so
appointed. A copy of such instrument shall be delivered to the Depositor, the
Special Servicer and the remaining Certificateholders by the successor so
appointed. In the event that the Trustee is terminated or removed pursuant to
this Section 8.07, all of its rights and obligations under this Agreement and in
and to the Mortgage Loans shall be terminated, other than any rights or
obligations that accrued prior to the date of such termination or removal
(including the right to receive all fees, expenses and other amounts (including,
without limitation, P&I Advances and accrued interest thereon) accrued or owing
to it under this Agreement, with respect to periods prior to the date of such
termination or removal and no termination without cause shall be effective until
the payment of such amounts to the Trustee).
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(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
the Special Servicer and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee all Mortgage Files and related documents
and statements held by it hereunder (other than any Mortgage Files at the time
held on its behalf by a third-party Custodian, which Custodian shall become the
agent of the successor trustee), and the Depositor, the Master Servicer, the
Special Servicer and the predecessor trustee shall execute and deliver such
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor trustee all such rights, powers,
duties and obligations, and to enable the successor trustee to perform its
obligations hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08, unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06 and the Rating Agencies
have provided confirmation pursuant to such Section.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor and the
Certificateholders.
SECTION 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated or any entity resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any entity succeeding
to the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such entity shall be eligible under the provisions
of Section 8.06 and the Rating Agencies have provided confirmation pursuant to
such Section, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
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SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Master Servicer and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicer and the Trustee may consider necessary or desirable. If the
Master Servicer shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Default in
respect of the Master Servicer shall have occurred and be continuing, the
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer or the Special Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any
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separate trustee or co-trustee shall cease to exist, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor,
any Mortgage Loan Seller or any Affiliate of the Depositor or any Mortgage Loan
Seller. Neither the Master Servicer nor the Special Servicer shall have any duty
to verify that any such Custodian is qualified to act as such in accordance with
the preceding sentence. Any such appointment of a third party Custodian and the
acceptance thereof shall be pursuant to a written agreement, which written
agreement shall (i) be consistent with this Agreement in all material respects
and requires the Custodian to comply with this Agreement in all material
respects and requires the Custodian to comply with all of the applicable
conditions of this Agreement; (ii) provide that if the Trustee shall for any
reason no longer act in the capacity of Trustee hereunder (including, without
limitation, by reason of an Event of Default), the successor trustee or its
designee may thereupon assume all of the rights and, except to the extent such
obligations arose prior to the date of assumption, obligations of the Custodian
under such agreement or alternatively, may terminate such agreement without
cause and without payment of any penalty or termination fee; and (iii) not
permit the Custodian any rights of indemnification that may be satisfied out of
assets of the Trust Fund. The appointment of one or more Custodians shall not
relieve the Trustee from any of its obligations hereunder, and the Trustee shall
remain responsible and liable for all acts and omissions of any Custodian. The
initial Custodian shall be the Trustee. Notwithstanding anything herein to the
contrary, if the Trustee is no longer the Custodian, any provision or
requirement herein requiring notice or any information or documentation to be
provided to the Custodian shall be construed to require that such notice,
information or documents also be provided to the Trustee. Any Custodian
hereunder (other than the Trustee) shall at all times maintain a fidelity bond
and errors and omissions policy in amounts customary for custodians performing
duties similar to those set forth in this Agreement.
SECTION 8.12. Appointment of Authenticating Agents.
(a) The Trustee may at the Trustee's expense appoint one or more
Authenticating Agents, which shall be authorized to act on behalf of the Trustee
in authenticating Certificates. The Trustee shall cause any such Authenticating
Agent to execute and deliver to the
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Trustee an instrument in which such Authenticating Agent shall agree to act in
such capacity, in accordance with the obligations and responsibilities herein.
Each Authenticating Agent must be organized and doing business under the laws of
the United States of America or of any State, authorized under such laws to do a
trust business, have a combined capital and surplus of at least $15,000,000, and
be subject to supervision or examination by federal or state authorities. Each
Authenticating Agent shall be subject to the same obligations, standard of care,
protection and indemnities as would be imposed on, or would protect, the Trustee
hereunder. The appointment of an Authenticating Agent shall not relieve the
Trustee from any of its obligations hereunder, and the Trustee shall remain
responsible and liable for all acts and omissions of the Authenticating Agent.
In the absence of any other Person appointed in accordance herewith acting as
Authenticating Agent, the Trustee hereby agrees to act in such capacity in
accordance with the terms hereof. Notwithstanding anything herein to the
contrary, if the Trustee is no longer the Authenticating Agent, any provision or
requirement herein requiring notice or any information or documentation to be
provided to the Authenticating Agent shall be construed to require that such
notice, information or documentation also be provided to the Trustee.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent, the Master Servicer, the Certificate Registrar and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 8.12, the Trustee may appoint a
successor Authenticating Agent, in which case the Trustee shall given written
notice of such appointment to the Master Servicer, the Certificate Registrar and
the Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, that no successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 8.12. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent. No Authenticating Agent shall have responsibility or
liability for any action taken by it as such at the direction of the Trustee.
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SECTION 8.13. Appointment of Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to Certificateholders hereunder. The Trustee shall cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in an Eligible Account in
trust for the benefit of the Certificateholders entitled thereto until such sums
shall be paid to the Certificateholders. All funds remitted by the Trustee or
the Master Servicer to any such Paying Agent for the purpose of making
distributions shall be paid to Certificateholders on each Distribution Date and
any amounts not so paid shall be returned on such Distribution Date to the
Trustee or the Master Servicer, as applicable. If the Paying Agent is not the
Trustee or the Master Servicer, the Trustee or the Master Servicer shall remit
to the Paying Agent on the Business Day prior to each Distribution Date, by wire
transfer in immediately available funds, the funds to be distributed on such
Distribution Date. Any Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers and shall have
a rating of at least "A" (or its equivalent) by DCR, or such lower rating as
will not result in qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates, as evidenced in writing by the Rating Agencies.
Any such appointment of a third party Paying Agent and the acceptance thereof
shall be pursuant to a written agreement, which written agreement shall (i) be
consistent with this Agreement in all material respects and requires the Paying
Agent to comply with this Agreement in all material respects and requires the
Paying Agent to comply with all of the applicable conditions of this Agreement;
(ii) provide that if the Trustee shall for any reason no longer act in the
capacity of Trustee hereunder (including, without limitation, by reason of an
Event of Default), the successor trustee or its designee may (A) thereupon
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Paying Agent under such agreement or (B)
terminate such agreement without cause and without payment of any penalty or
termination fee; and (iii) not permit the Paying Agent any rights of
indemnification that may be satisfied out of assets of the Trust Fund. The
appointment of any Paying Agent shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible and liable for
all acts and omissions of any Paying Agent to the extent such Paying Agent would
have been responsible pursuant to the terms hereof. The initial Paying Agent
shall be the Trustee. Notwithstanding anything herein to the contrary, if the
Trustee is no longer the Paying Agent, any provision or requirement herein
requiring notice or any information to be provided to the Paying Agent shall be
construed to require that such notice, information or documentation also be
provided to the Trustee.
SECTION 8.14. Appointment of REMIC Administrators.
(a) The Trustee may appoint at the Trustee's expense, one or more
REMIC Administrators, which shall be authorized to act on behalf of the Trustee
in performing the functions set forth in Sections 3.17, 10.01 and 10.02 herein.
The Trustee shall cause any such REMIC Administrator to execute and deliver to
the Trustee an instrument in which such REMIC
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Administrator shall agree to act in such capacity, with the obligations and
responsibilities herein. The appointment of a REMIC Administrator shall not
relieve the Trustee from any of its obligations hereunder, and the Trustee shall
remain responsible and liable for all acts and omissions of the REMIC
Administrator. Each REMIC Administrator must be acceptable to the Trustee and
must be organized and doing business under the laws of the United States of
America or of any State and be subject to supervision or examination by federal
or state authorities. In the absence of any other Person appointed in accordance
herewith acting as REMIC Administrator, the Trustee hereby agrees to act in such
capacity in accordance with the terms hereof.
(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Trustee
or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at
least 30 days' advance written notice of resignation to the Trustee, the
Certificate Registrar, the Paying Agent, the Master Servicer, the Special
Servicer and the Depositor. The Trustee may at any time terminate the agency of
any REMIC Administrator by giving written notice of termination to such REMIC
Administrator, the Master Servicer, the Certificate Registrar and the Depositor.
Upon receiving a notice of resignation or upon such a termination, or in case at
any time any REMIC Administrator shall cease to be eligible in accordance with
the provisions of this Section 8.14, the Trustee may appoint a successor REMIC
Administrator, in which case the Trustee shall given written notice of such
appointment to the Master Servicer and the Depositor and shall mail notice of
such appointment to all Holders of Certificates; provided, however, that no
successor REMIC Administrator shall be appointed unless eligible under the
provisions of this Section 8.14. Any successor REMIC Administrator upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as REMIC Administrator. No REMIC Administrator
shall have responsibility or liability for any action taken by it as such at the
direction of the Trustee.
SECTION 8.15. Access to Certain Information.
The Trustee shall afford to the Master Servicer, the Special
Servicer, each Rating Agency and the Depositor, any Certificateholder and to the
OTS, the FDIC and any other banking or insurance regulatory authority that may
exercise authority over any Certificateholder, access to any documentation
regarding the Mortgage Loans within its control that may be required to be
provided by this Agreement or by applicable law. Such access shall be afforded
without charge but only upon reasonable prior written request and during normal
business hours at the offices of the Trustee designated by it.
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SECTION 8.16. Representations, Warranties and Covenants of Trustee.
(a) The Trustee hereby represents and warrants to the Master
Servicer, the Special Servicer and the Depositor and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of
the United States.
(ii) The execution and delivery of this Agreement by the
Trustee, and the performance and compliance with the terms of this
Agreement by the Trustee, will not violate the Trustee's
organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in a material breach of, any material agreement or
other material instrument to which it is a party or by which it is
bound.
(iii) Except to the extent that the laws of certain
jurisdictions in which any part of the Trust Fund may be located
require that a co-trustee or separate trustee be appointed to act
with respect to such property as contemplated by Section 8.10, the
Trustee has the full power and authority to carry on its business as
now being conducted and to enter into and consummate all
transactions contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Trustee, enforceable against the Trustee
in accordance with the terms hereof (including with respect to any
advancing obligations hereunder), subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and the
rights of creditors of banks, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding
in equity or at law.
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with
the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Trustee's good faith
and reasonable judgment, is likely to affect materially and
adversely the ability of the Trustee to perform its obligations
under this Agreement.
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(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined
adversely to the Trustee, would prohibit the Trustee from entering
into this Agreement or, in the Trustee's good faith and reasonable
judgment, is likely to materially and adversely affect the ability
of the Trustee to perform its obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any
court or governmental agency or body required for the execution,
delivery and performance by the Trustee of or compliance by the
Trustee with this Agreement or the consummation of the transactions
contemplated by this Agreement has been obtained and is effective.
(b) The Trustee represents and warrants that any custom-made
software or hardware designed or purchased or licensed by the Trustee and used
by the Trustee in the course of the operation or management of, or the
compiling, reporting or generation of data required by this Agreement does not
contain any deficiency (x) in the ability of such software or hardware to
identify correctly or perform calculations or other processing with respect to
dates after August 31, 1999 or (y) that would cause such software or hardware to
be fit no longer for the purpose for which it was intended by reason of the
changing of the date from 1999 to 2000.
SECTION 8.17. Reports to the Securities and Exchange Commission;
Available Information.
The Trustee shall prepare for filing, and execute, on behalf of the
Trust Fund, and file with the Securities and Exchange Commission, each
Distribution Date Statement on Form 8-K each month and any and all reports,
statements and information respecting the Trust Fund and/or the certificates
required to be filed on behalf of the Trust Fund under the Exchange Act as the
Trustee may be directed by the Depositor, until directed in writing by the
Depositor to discontinue such filings. Upon such filing with the Securities and
Exchange Commission, the Trustee shall promptly deliver to the Depositor and the
Master Servicer a copy of any such executed report, statement or information.
The Depositor shall promptly file, and exercise its reasonable best efforts to
obtain a favorable response to, no-action requests to, or requests for other
appropriate exemptive relief from, the Securities and Exchange Commission
regarding the usual and customary exemption from certain reporting requirements
granted to issuers of securities similar to the Certificates. The Depositor
agrees to indemnify and hold harmless the Trustee with respect to any liability,
cost or expenses, including reasonable attorneys' fees, arising from the
Trustee's execution of such reports, statements and information that contain
errors or omissions or is otherwise misleading, provided, however, that if the
indemnification provided for herein is invalid or unenforceable, then the
Depositor shall contribute to the amount paid by the Trustee as a result of such
liability in such amount as is necessary to limit the Trustee's responsibility
for any such payment to any amount resulting from its own negligence or willful
misconduct. The Trustee shall have no responsibility to determine whether or not
any filing may be required and shall not have
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any responsibility to review or confirm in any way the accuracy or the
sufficiency of the contents of any such filing.
SECTION 8.18. Maintenance of Mortgage File.
Except for the release of items in the Mortgage File contemplated by
this Agreement, including, without limitation, as necessary for the enforcement
of the holder's rights and remedies under the related Mortgage Loan, the Trustee
covenants and agrees that it shall maintain each Mortgage File in the State of
Minnesota, and that it shall not move any Mortgage File outside the State of
Minnesota, other than as specifically provided for in this Agreement, unless it
shall first obtain and provide, at the expense of the Trustee, an Opinion of
Counsel to the Depositor and the Rating Agencies to the effect that the
Trustee's first priority interest in the Mortgage Notes has been duly and fully
perfected under the applicable laws and regulations of such other jurisdiction.
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer and the Trustee (other than the
obligations of the Paying Agent on behalf of the Trustee to provide for and make
payments to Certificateholders as hereafter set forth) shall terminate upon
payment (or provision for payment) (i) to the Certificateholders of all amounts
held by or on behalf of the Trustee and required hereunder to be so paid on the
Distribution Date following the earlier to occur of (A) the purchase by the
Depositor, the Master Servicer, the Special Servicer or the Majority Subordinate
Certificateholder of all Mortgage Loans and each REO Property remaining in REMIC
I at a price equal to (1) the aggregate Purchase Price of all the Mortgage Loans
included in REMIC I, plus (2) the appraised value of each REO Property, if any,
included in REMIC I, such appraisal to be conducted by an Independent Appraiser
selected by the Master Servicer and approved by the Trustee, minus (3) if the
purchaser is the Master Servicer, the aggregate amount of unreimbursed Advances
made by the Master Servicer, together with any interest accrued and payable to
the Master Servicer in respect of unreimbursed Advances in accordance with
Sections 3.03(d) and 4.03(d) and any unpaid Master Servicing Fees remaining
outstanding (which items shall be deemed to have been paid or reimbursed to the
Master Servicer in connection with such purchase), and (B) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in REMIC I, and (ii) to the Trustee, the Master
Servicer, the Special Servicer and the officers, directors, employees and agents
of each of them of all amounts which may have become due and owing to any of
them
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hereunder; provided, however, that in no event shall the Trust Fund created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof.
The Depositor, the Master Servicer, the Special Servicer or the
Majority Subordinate Certificateholder may at its option elect to purchase all
of the Mortgage Loans and each REO Property remaining in REMIC I as contemplated
by clause (i) of the preceding paragraph by giving written notice to the other
parties hereto no later than 60 days prior to the anticipated date of purchase;
provided, however, that (i) the aggregate Stated Principal Balance of the
Mortgage Pool at the time of such election is less than 1% of the aggregate
Cut-off Date Balance of the Mortgage Pool set forth in the Preliminary
Statement, and (ii) the Master Servicer shall not have the right to effect such
a purchase if, within 30 days following the Master Servicer's delivery of a
notice of election pursuant to this paragraph, the Depositor, the Special
Servicer, or the Majority Subordinate Certificateholder shall give notice of its
election to purchase all of the Mortgage Loans and each REO Property remaining
in REMIC I and shall thereafter effect such purchase in accordance with the
terms hereof. The Master Servicer, the Depositor, or the Majority Subordinate
Certificateholder shall not have the right to effect such a purchase if, within
30 days following the Special Servicer's delivery of a notice of election
pursuant to this paragraph, the Special Servicer shall give notice of its
election to purchase all of the Mortgage Loans and each REO Property remaining
in REMIC I and shall thereafter effect such purchase in accordance with the
terms hereof. If the Trust Fund is to be terminated in connection with the
Master Servicer's, the Special Servicer's, the Majority Subordinate
Certificateholder's, or the Depositor's purchase of all of the Mortgage Loans
and each REO Property remaining in REMIC I, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder, or the Depositor, as
applicable, shall deliver to the Paying Agent for deposit in the Distribution
Account not later than the P&I Advance Date relating to the Distribution Date on
which the final distribution on the Certificates is to occur an amount in
immediately available funds equal to the above-described purchase price. In
addition, the Master Servicer shall transfer to the Distribution Account all
amounts required to be transferred thereto on such P&I Advance Date from the
Certificate Account pursuant to the first paragraph of Section 3.04(b), together
with any other amounts on deposit in the Certificate Account that would
otherwise be held for future distribution. Upon confirmation that such final
deposit has been made, the Trustee shall release or cause to be released to the
Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder, or the Depositor, as applicable, the Mortgage Files for the
remaining Mortgage Loans and shall execute all assignments, endorsements and
other instruments furnished to it by the Master Servicer, the Special Servicer,
the Majority Subordinate Certificateholder, or the Depositor, as applicable, as
shall be necessary to effectuate transfer of the Mortgage Loans and REO
Properties to the Depositor, the Master Servicer, the Special Servicer, or the
Majority Subordinate Certificateholder (or their respective designees), as
applicable. Any transfer of Mortgage Loans to the Depositor pursuant to this
paragraph shall be on a servicing-released basis.
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Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders mailed (a) if such notice is given in connection
with the Depositor's, the Master Servicer's, the Special Servicer's, or the
Majority Subordinate Certificateholder's purchase of the Mortgage Loans and each
REO Property remaining in REMIC I, not earlier than the 15th day and not later
than the 25th day of the month next preceding the month of the final
distribution on the Certificates or (b) otherwise during the month of such final
distribution on or before the Determination Date in such month, in each case
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment of the Certificates will be made, (ii) the amount of any such
final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the offices of the Certificate Registrar or
such other location therein designated. The Trustee shall give such notice to
the Master Servicer, the Special Servicer and the Depositor at the time such
notice is given to Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the Paying Agent shall
distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of the
amounts then on deposit in the Distribution Account that are allocable to
payments on the Class of Certificates so presented and surrendered. Amounts on
deposit in the Distribution Account as of the final Distribution Date, exclusive
of any portion thereof that would be payable to any Person in accordance with
clauses (ii) through (vi) of Section 3.05(b), and further exclusive of any
portion thereof that represents Prepayment Premiums and Yield Maintenance
Charges, shall be allocated in the order of priority set forth in Section
4.01(a), in each case to the extent of remaining available funds.
Any funds not distributed to any Holder or Holders of Certificates
of such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 9.01 shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Paying Agent, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate, and
shall deal with all such unclaimed amounts in accordance with applicable law.
The costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder.
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All actual distributions on the respective Classes of REMIC III
Certificates on the final Distribution Date in accordance with foregoing
provisions of this Section 9.01 shall be deemed to first have been distributed
from REMIC I to REMIC II on the various REMIC I Regular Interests in accordance
with Section 4.01(i) and then from REMIC II to REMIC III on the various REMIC II
Regular Interests in accordance with Section 4.01(h).
SECTION 9.02. Additional Termination Requirements.
(a) If the Depositor, the Master Servicer, the Special Servicer or
the Majority Subordinate Certificate holders purchases all of the Mortgage Loans
and each REO Property remaining in REMIC I as provided in Section 9.01, the
Trust Fund (and, accordingly, REMIC I, REMIC II and REMIC III) shall be
terminated in accordance with the following additional requirements, unless the
Person effecting the purchase obtains at its own expense and delivers to the
Trustee and, in the case of the Depositor, to the Trustee and the Master
Servicer, an Opinion of Counsel, addressed to the Trustee and the Master
Servicer, to the effect that the failure of the Trust Fund to comply with the
requirements of this Section 9.02 will not result in the imposition of taxes on
"prohibited transactions" of REMIC I, REMIC II and REMIC III as defined in
Section 860F of the Code or cause REMIC I, REMIC II and REMIC III to fail to
qualify as a REMIC at any time that any Certificates are outstanding:
(i) the Trustee shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return
for each of REMIC I, REMIC II and REMIC III pursuant to Treasury
regulation Section 1.860F-1 and shall satisfy all requirements of a
qualified liquidation under Section 860F of the Code and any
regulations thereunder as set forth in an Opinion of Counsel
obtained at the expense of the Trust Fund;
(ii) during such 90-day liquidation period and at or prior to
the time of making of the final payment on the Certificates, the
Trustee shall sell all of the assets of REMIC I to the Master
Servicer, the Depositor, the Special Servicer or the Majority
Subordinate Certificate holders, as applicable, for cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Paying Agent shall distribute or credit, or cause
to be distributed or credited, to the Certificateholders in
accordance with Section 9.01 all cash on hand (other than cash
retained to meet claims), and each of REMIC I, REMIC II and REMIC
III shall terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the Trustee to specify the 90-day liquidation period for each
of REMIC I, REMIC II and REMIC III, which authorization shall be binding upon
all successor Certificateholders.
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ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I,
REMIC II and REMIC III as a REMIC under the Code and, if necessary, under
applicable state law. Such election will be made on Form 1066 or other
appropriate federal or state Tax Returns for the taxable year ending on the last
day of the calendar year in which the Certificates are issued.
(b) The REMIC I Regular Interests, the REMIC II Regular Interests
and the Regular Certificates (or, in the case of the Class IO Certificates, each
of its Components) are hereby designated as "regular interests" (within the
meaning of Section 860G(a)(1) of the Code) in REMIC I, REMIC II and REMIC III,
respectively. The Class R-I Certificates, the Class R-II Certificates and the
Class R-III Certificates are hereby designated as the single class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code) in REMIC I,
REMIC II and REMIC III, respectively. None of the Master Servicer, the Special
Servicer or the Trustee shall (to the extent within its control) permit the
creation of any other "interests" in REMIC I, REMIC II or REMIC III (within the
meaning of Treasury regulation Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of
REMIC I, REMIC II and REMIC III within the meaning of Section 860G(a)(9) of the
Code.
(d) The related Plurality Residual Certificateholder as to the
applicable taxable year is hereby designated as the Tax Matters Person of each
of REMIC I, REMIC II and REMIC III, and shall act on behalf of the related REMIC
in relation to any tax matter or controversy and shall represent the related
REMIC in any administrative or judicial proceeding relating to an examination or
audit by any governmental taxing authority; provided that the REMIC
Administrator is hereby irrevocably appointed to act and shall act (in
consultation with the Tax Matters Person for each of REMIC I, REMIC II and REMIC
III) as agent and attorney-in-fact for the Tax Matters Person for each of REMIC
I, REMIC II and REMIC III in the performance of its duties as such.
(e) [RESERVED].
(f) Except as otherwise provided in Section 3.17(a) and subsections
(i) and (j) below, the REMIC Administrator shall pay out of its own funds any
and all routine tax administration expenses of the Trust Fund incurred with
respect to each of REMIC I, REMIC II and REMIC III (but not including any
professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to the Trust Fund that involve the Internal
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Revenue Service or state tax authorities which extraordinary expenses shall be
payable or reimbursable to the Trustee from the Trust Fund unless otherwise
provided in Section 10.01(i) or 10.01(j)).
(g) Within 30 days after the Closing Date, the REMIC Administrator
shall prepare and file with the Internal Revenue Service Form 8811, "Information
Return for Real Estate Mortgage Investment Conduits (REMIC) and Issuers of
Collateralized Debt Obligations" for the Trust Fund. In addition, the REMIC
Administrator shall prepare, sign and file all of the other Tax Returns in
respect of REMIC I, REMIC II and REMIC III. The expenses of preparing and filing
such returns shall be borne by the REMIC Administrator without any right of
reimbursement therefor. The other parties hereto shall provide on a timely basis
to the REMIC Administrator or its designee such information with respect to each
of REMIC I, REMIC II and REMIC III as is in its possession and reasonably
requested by the REMIC Administrator to enable it to perform its obligations
under this Article. Without limiting the generality of the foregoing, the
Depositor, within ten days following the REMIC Administrator's request therefor,
shall provide in writing to the REMIC Administrator such information as is
reasonably requested by the REMIC Administrator for tax purposes, as to the
valuations and issue prices of the Certificates, and the REMIC Administrator's
duty to perform its reporting and other tax compliance obligations under this
Article X shall be subject to the condition that it receives from the Depositor
such information possessed by the Depositor that is necessary to permit the
Trustee to perform such obligations.
(h) The REMIC Administrator shall perform on behalf of each of REMIC
I, REMIC II and REMIC III all reporting and other tax compliance duties that are
the responsibility of each such REMIC under the Code, the REMIC Provisions or
other compliance guidance issued by the Internal Revenue Service or, with
respect to State and Local Taxes, any state or local taxing authority. Included
among such duties, the REMIC Administrator shall provide to: (i) any Transferor
of a Residual Certificate, such information as is necessary for the application
of any tax relating to the transfer of a Residual Certificate to any Person who
is not a Permitted Transferee; (ii) the Certificateholders, such information or
reports as are required by the Code or the REMIC Provisions, including, without
limitation, reports relating to interest, original issue discount and market
discount or premium (using the Prepayment Assumption as required hereunder); and
(iii) the Internal Revenue Service, the name, title, address and telephone
number of the Person who will serve as the representative of each of REMIC I,
REMIC II and REMIC III.
(i) The REMIC Administrator shall perform its duties hereunder so as
to maintain the status of each of REMIC I, REMIC II and REMIC III as a REMIC
under the REMIC Provisions (and the Trustee, the Master Servicer and the Special
Servicer shall assist the REMIC Administrator to the extent reasonably requested
by the REMIC Administrator and to the extent of information within the
Trustee's, the Master Servicer's or the Special Servicer's possession or
control). None of the REMIC Administrator, Master Servicer, the Special
Servicer, or the Trustee shall knowingly take (or cause any of REMIC I, REMIC II
or REMIC III to take) any
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action or fail to take (or fail to cause to be taken) any action that, under the
REMIC Provisions, if taken or not taken, as the case may be, could (i) endanger
the status of any of REMIC I, REMIC II or REMIC III as a REMIC, or (ii) except
as provided in Section 3.17(a), result in the imposition of a tax upon any of
REMIC I, REMIC II or REMIC III (including, but not limited to, the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code, the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code or the result
in the imposition of a tax on "net income from foreclosure property" as defined
in Section 860G(c) of the Code) (any such endangerment or imposition or, except
as provided in Section 3.17(a), imposition of a tax, an "Adverse REMIC Event"),
unless the REMIC Administrator has obtained or received an Opinion of Counsel
(at the expense of the party requesting such action or at the expense of the
Trust Fund if the REMIC Administrator seeks to take such action or to refrain
from acting for the benefit of the Certificateholders) to the effect that the
contemplated action will not result in an Adverse REMIC Event. The REMIC
Administrator shall not take any action or fail to take any action (whether or
not authorized hereunder) as to which the Master Servicer or the Special
Servicer has advised it in writing that either the Master Servicer or the
Special Servicer has received or obtained an Opinion of Counsel to the effect
that an Adverse REMIC Event could occur with respect to such action. In
addition, prior to taking any action with respect to REMIC I, REMIC II or REMIC
III, or causing any of REMIC I, REMIC II or REMIC III to take any action, that
is not expressly permitted under the terms of this Agreement, the Master
Servicer and the Special Servicer shall consult with the REMIC Administrator or
its designee, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur. Neither the Master Servicer nor the Special
Servicer shall take any such action or cause any of REMIC I, REMIC II or REMIC
III to take any such action as to which the REMIC Administrator has advised it
in writing that an Adverse REMIC Event could occur, and neither the Master
Servicer nor the Special Servicer shall have any liability hereunder for any
action taken by it in accordance with the written instructions of the REMIC
Administrator. The REMIC Administrator may consult with counsel to make such
written advice, and the cost of same shall be borne by the party seeking to take
the action not expressly permitted by this Agreement, but in no event at the
cost or expense of the Trust Fund, the Trustee or the REMIC Administrator. At
all times as may be required by the Code, the REMIC Administrator shall make
reasonable efforts to ensure that substantially all of the assets of REMIC I,
REMIC II and REMIC III will consist of "qualified mortgages" as defined in
Section 860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(j) If any tax is imposed on any of REMIC I, REMIC II or REMIC III,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, any taxes on contributions
to REMIC I, REMIC II or REMIC III after the Startup Day pursuant to Section
860G(d) of the Code, and any other tax imposed by the Code or any applicable
provisions of State or Local Tax laws (other than any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a)), such tax,
together with all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees), shall be charged to and
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paid by: (i) the REMIC Administrator, if such tax arises out of or results from
a breach by the REMIC Administrator of any of its obligations under this Article
X provided that no liability shall be imposed upon the REMIC Administrator under
this Clause if another party has responsibility for payment of such tax under
Clauses (iii) or (v) of this Section; (ii) the Special Servicer, if such tax
arises out of or results from a breach by the Special Servicer of any of its
obligations under Article III or this Article X; (iii) the Master Servicer, if
such tax arises out of or results from a breach by the Master Servicer of any of
its obligations under Article III or this Article X; (iv) the Trustee, if such
tax arises out of or results from a breach by the Trustee of any of its
obligations under Article IV, Article VIII or this Article X; (v) the applicable
Mortgage Loan Seller, if such tax was imposed due to the fact that any of the
Mortgage Loans did not, at the time of their transfer to the REMIC I, constitute
a "qualified mortgage" as defined in Section 860G(a)(3) of the Code; or (vi) the
Trust Fund excluding the portion thereof constituting the Grantor Trust, in all
other instances. Any tax permitted to be incurred by the Special Servicer
pursuant to Section 3.17(a) shall be charged to and paid by the Trust Fund. Any
such amounts payable by the Trust Fund shall be paid by the Paying Agent upon
the written direction of the REMIC Administrator out of amounts on deposit in
the Distribution Account in reduction of the Available Distribution Amount
pursuant to Section 3.05(b).
(k) The REMIC Administrator shall, for federal income tax purposes,
maintain books and records with respect to each of REMIC I, REMIC II and REMIC
III on a calendar year and on an accrual basis.
(l) Following the Startup Day, none of the Trustee, the Master
Servicer and the Special Servicer shall accept any contributions of assets to
REMIC I, REMIC II or REMIC III unless it shall have received an Opinion of
Counsel (at the expense of the party seeking to cause such contribution and in
no event at the expense of the Trust Fund or the Trustee) to the effect that the
inclusion of such assets in such REMIC will not cause: (i) such REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding; or (ii)
the imposition of any tax on such REMIC under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(m) None of the Trustee, the Master Servicer and the Special
Servicer shall consent to or, to the extent it is within the control of such
Person, permit: (i) the sale or disposition of any of the Mortgage Loans (except
in connection with (A) the default or foreclosure of a Mortgage Loan, including,
but not limited to, the sale or other disposition of a Mortgaged Property
acquired by deed in lieu of foreclosure, (B) the bankruptcy of REMIC I, REMIC II
or REMIC III, (C) the termination of REMIC I, REMIC II and REMIC III pursuant to
Article IX of this Agreement, or (D) a purchase of Mortgage Loans pursuant to or
as contemplated by Article II or III of this Agreement); (ii) the sale or
disposition of any investments in the Certificate Account, the Distribution
Account or the REO Account for gain; or (iii) the acquisition of any assets for
REMIC I, REMIC II or REMIC III (other than a Mortgaged Property acquired through
foreclosure, deed in lieu of foreclosure or otherwise in respect of a defaulted
Mortgage Loan, (2)
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a Qualified Substitute Mortgage Loan pursuant to Article II hereof and (3)
Permitted Investments acquired in connection with the investment of funds in the
Certificate Account, the Distribution Account or the REO Account); in any event
unless it has received an Opinion of Counsel (at the expense of the party
seeking to cause such sale, disposition, or acquisition but in no event at the
expense of the Trust Fund or the Trustee) to the effect that such sale,
disposition, or acquisition will not cause: (x) REMIC I, REMIC II or REMIC III
to fail to qualify as a REMIC at any time that any Certificates are outstanding;
or (y) the imposition of any tax on REMIC I, REMIC II or REMIC III under the
REMIC Provisions or other applicable provisions of federal, state and local law
or ordinances.
(n) Except as permitted by Section 3.17(a), none of the Trustee, the
Master Servicer and the Special Servicer shall enter into any arrangement by
which REMIC I, REMIC II or REMIC III will receive a fee or other compensation
for services nor permit REMIC I, REMIC II or REMIC III to receive any income
from assets other than "qualified mortgages" as defined in Section 860G(a)(3) of
the Code or "permitted investments" as defined in Section 860G(a)(5) of the
Code.
SECTION 10.02. Grantor Trust Administration.
(a) The REMIC Administrator shall treat the Grantor Trust, for tax
return preparation purposes, as a grantor trust under the Code and shall treat
the Additional Interest as a separate asset of the Grantor Trust, and not of
REMIC I, REMIC II or REMIC III, as permitted by Treasury Regulations Section
1.860G-2(i)(1) and, if necessary, under applicable state law and will file
appropriate federal or state Tax Returns for each taxable year ending on or
after the last day of the calendar year in which the Certificates are issued.
(b) The REMIC Administrator shall pay out of its own funds any and
all routine tax administration expenses of the Trust Fund incurred with respect
to the Grantor Trust (but not including any professional fees or expenses
related to audits or any administrative or judicial proceedings with respect to
the Trust Fund that involve the Internal Revenue Service or state tax
authorities which extraordinary expenses shall be payable or reimbursable to the
REMIC Administrator from the Trust Fund unless otherwise provided in Section
10.02(e) or 10.02(f)).
(c) The REMIC Administrator shall prepare, sign and file when due
all of the Tax Returns in respect of the Grantor Trust. The expenses of
preparing and filing such returns shall be borne by the REMIC Administrator
without any right of reimbursement therefor. The other parties hereto shall
provide on a timely basis to the REMIC Administrator or its designee such
information with respect to the Grantor Trust as is in its possession and
reasonably requested by the REMIC Administrator to enable it to perform its
obligations under this Section 10.02. Without limiting the generality of the
foregoing, the Depositor, within ten days following the REMIC Administrator's
request therefor, shall provide in writing to the REMIC Administrator such
information as is reasonably requested by the REMIC Administrator for tax
purposes, and
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the REMIC Administrator's duty to perform its reporting and other tax compliance
obligations under this Section 10.02 shall be subject to the condition that it
receives from the Depositor such information possessed by the Depositor that is
necessary to permit the REMIC Administrator to perform such obligations.
(d) The REMIC Administrator shall perform on behalf of the Grantor
Trust all reporting and other tax compliance duties that are required in respect
thereof under the Code, the Grantor Trust Provisions or other compliance
guidance issued by the Internal Revenue Service or any state or local taxing
authority.
(e) The REMIC Administrator shall perform its duties hereunder so as
to maintain the status of the Grantor Trust as a grantor trust under the Grantor
Trust Provisions (and the Trustee, the Master Servicer and the Special Servicer
shall assist the REMIC Administrator to the extent reasonably requested by the
REMIC Administrator and to the extent of information within the Trustee's, the
Master Servicer's or the Special Servicer's possession or control). None of the
REMIC Administrator, Master Servicer, the Special Servicer or the Trustee shall
knowingly take (or cause the Grantor Trust to take) any action or fail to take
(or fail to cause to be taken) any action that, under the Grantor Trust
Provisions, if taken or not taken, as the case may be, could endanger the status
of the Grantor Trust as a grantor trust under the Grantor Trust Provisions (any
such endangerment of grantor trust status, an "Adverse Grantor Trust Event"),
unless the REMIC Administrator has obtained or received an Opinion of Counsel
(at the expense of the party requesting such action or at the expense of the
Trust Fund if the REMIC Administrator seeks to take such action or to refrain
from taking any action for the benefit of the Certificateholders) to the effect
that the contemplated action will not result in an Adverse Grantor Trust Event.
None of the other parties hereto shall take any action or fail to take any
action (whether or not authorized hereunder) as to which the REMIC Administrator
has advised it in writing that the REMIC Administrator has received or obtained
an Opinion of Counsel to the effect that an Adverse Grantor Trust Event could
result from such action or failure to act. In addition, prior to taking any
action with respect to the Grantor Trust, or causing the Trust Fund to take any
action, that is not expressly permitted under the terms of this Agreement, the
Master Servicer and the Special Servicer shall consult with the REMIC
Administrator or its designee, in writing, with respect to whether such action
could cause an Adverse Grantor Trust Event to occur. Neither the Master Servicer
nor the Special Servicer shall have any liability hereunder for any action taken
by it in accordance with the written instructions of the REMIC Administrator.
The REMIC Administrator may consult with counsel to make such written advice,
and the cost of same shall be borne by the party seeking to take the action not
expressly permitted by this Agreement, but in no event at the cost or expense of
the Trust Fund, the REMIC Administrator or the Trustee.
(f) If any tax is imposed on the Grantor Trust, such tax, together
with all incidental costs and expenses (including, without limitation, penalties
and reasonable attorneys' fees), shall be charged to and paid by: (i) the REMIC
Administrator, if such tax arises out of or results from a breach by the REMIC
Administrator of any of its obligations under this
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Section 10.02; (ii) the Special Servicer, if such tax arises out of or results
from a breach by the Special Servicer of any of its obligations under Article
III or this Section 10.02; (iii) the Master Servicer, if such tax arises out of
or results from a breach by the Master Servicer of any of its obligations under
Article III or this Section 10.02; (iv) the Trustee, if such tax arises out of
or results from a breach by the Trustee of any of its obligations under Article
IV, Article VIII or this Section 10.02; or (v) the portion of the Trust Fund
constituting the Grantor Trust in all other instances.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct, modify or supplement any provision herein which may
be inconsistent with any other provision herein, (iii) to add any other
provisions with respect to matters or questions arising hereunder which shall
not be inconsistent with the provisions hereof, (iv) to relax or eliminate any
requirement hereunder imposed by the REMIC Provisions if the REMIC Provisions
are amended or clarified such that any such requirement may be relaxed or
eliminated, or (v) if such amendment, as evidenced by an Opinion of Counsel (at
the expense of the Trust Fund, in the case of any amendment requested by the
Master Servicer or Special Servicer that protects or is in furtherance of the
interests of the Certificateholders, and otherwise at the expense of the party
seeking such amendment) delivered to the Master Servicer, the Special Servicer
and the Trustee, is advisable or reasonably necessary to comply with any
requirements imposed by the Code or any successor or amendatory statute or any
temporary or final regulation, revenue ruling, revenue procedure or other
written official announcement or interpretation relating to federal income tax
laws or any such proposed action which, if made effective, would apply
retroactively to any of the REMICs created hereunder at least from the effective
date of such amendment, or would be necessary to avoid the occurrence of a
prohibited transaction or to reduce the incidence of any tax that would arise
from any actions taken with respect to the operation of any such REMIC; provided
that such action (except any amendment described in clause (v) above) shall not,
as evidenced by an Opinion of Counsel (at the expense of the Trust Fund, in the
case of any amendment requested by the Master Servicer or Special Servicer that
protects or is in furtherance of the interests of the Certificateholders, and
otherwise at the expense of the party seeking such amendment) obtained by or
delivered to the Master Servicer, the Special Servicer and the Trustee,
adversely affect in any material respect the interests of any Certificateholder;
and provided further that the Master Servicer, the Special Servicer and the
Trustee shall have first obtained from each Rating Agency written confirmation
that such amendment will not result in the qualification, downgrade or
withdrawal of the rating on any Class of Certificates.
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(b) This Agreement may also be amended from time to time by the
agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates entitled to at least 51%
of the Voting Rights allocated to the affected Classes for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the timing of, payments received or advanced on
Mortgage Loans that are required to be distributed on any Certificate without
the consent of the Holder of such Certificate, (ii) as evidenced by an Opinion
of Counsel obtained by or delivered to the Master Servicer, the Special Servicer
and the Trustee, adversely affect in any material respect the interests of the
Holders of any Class of Certificates in a manner other than as described in (i)
without the consent of the Holders of all Certificates of such Class, (iii)
modify the provisions of this Section 11.01 without the consent of the Holders
of all Certificates then outstanding, (iv) modify the provisions of Section 3.20
without the consent of the Holders of Certificates entitled to all of the Voting
Rights or (v) modify the definition of Servicing Standard or the specified
percentage of Voting Rights which are required to be held by Certificateholders
to consent or not to object to any particular action pursuant to any provision
of this Agreement without the consent of the Holders of all Certificates then
outstanding. Notwithstanding any other provision of this Agreement, for purposes
of the giving or withholding of consents pursuant to this Section 11.01,
Certificates registered in the name of the Depositor or any Affiliate of the
Depositor shall be entitled to the same Voting Rights with respect to matters
described above as they would if any other Person held such Certificates, so
long as neither the Depositor nor any of its Affiliates is performing servicing
duties with respect to any of the Mortgage Loans.
(c) Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
first have obtained or been furnished with an Opinion of Counsel (at the expense
of the Trust Fund, in the case of any amendment requested by the Master Servicer
or Special Servicer that protects or is in furtherance of the interests of the
Certificateholders, and, otherwise, at the expense of the party seeking such
amendment) to the effect that (i) such amendment or the exercise of any power
granted to the Trustee, the Master Servicer or the Special Servicer in
accordance with such amendment will not result in the imposition of a tax on any
of REMIC I, REMIC II or REMIC III pursuant to the REMIC Provisions or on the
Grantor Trust or cause any of REMIC I, REMIC II or REMIC III to fail to qualify
as a REMIC or the Grantor Trust to fail to qualify as a "grantor trust" at any
time that any Certificates are outstanding and (ii) such amendment complies with
the provisions of this Section 10.01.
(d) Promptly after the execution of any such amendment, the Trustee
shall send a copy thereof to each Certificateholder.
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(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
(f) Each of the Master Servicer, the Special Servicer and the
Trustee may but shall not be obligated to enter into any amendment pursuant to
this Section that affects its rights, duties and immunities under this Agreement
or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a), (b) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer, the Special Servicer or the
Trustee requests any amendment of this Agreement that protects or is in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel required in connection therewith pursuant to Section 11.01(a)
or (c) shall be payable out of the Certificate Account or the Distribution
Account pursuant to Section 3.05.
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund, but only upon
direction accompanied by an Opinion of Counsel (the cost of which may be paid
out of the Certificate Account pursuant to Section 3.05(a)) to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders; provided, however, that the Trustee shall have no obligation
or responsibility to determine whether any such recordation of this Agreement is
required.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for
211
a partition or winding up of the Trust Fund, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates entitled to at least 25% of the Voting
Rights shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
which priority or preference is not otherwise provided for herein, or to enforce
any right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
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.
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SECTION 11.05. Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given when delivered to: (i) in the case of the Depositor, First Union
Commercial Mortgage Securities, Inc., Xxx Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxxxx Xxxxxx, facsimile number: 000-000-0000; (ii) in
the case of the Master Servicer, First Union National Bank, NC 1075, 0000
Xxxxxxxx Xxxxx - XXX0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: First
Union National Bank Commercial Mortgage Trust, Commercial Mortgage Pass- Through
Certificates, Series 1999-C4, facsimile number: 000-000-0000; (iii) in the case
of the Special Servicer, Orix Real Estate Capital Markets, LLC, 0000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000, Attention: Xxxxx X. Xxxxx XX, telecopy
number: (000) 000-0000, with a copy to ORIX Real Estate Capital Markets, LLC,
0000 Xxxx Xxxxxx, 00xx xxxxx, Xxxxxx, Xxxxx 00000, Attention: Xxxx Xxxxx,
facsimile number: (000) 000-0000; (iv) in the case of the Trustee, Norwest Bank
Minnesota, National Association, 00000 Xxxxxx Xxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx
00000-0000, Attention: Corporate Trust Services (CMBS) - First Union National
Bank Commercial Mortgage Trust Series 1999-C4, facsimile number (000) 000-0000;
(v) in the case of the Underwriters to each of First Union Securities Inc.,
First Union Capital Markets Group, Xxx Xxxxx Xxxxx Xxxxxx, XX0, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000-0000, Attention: Xxxxx X. Xxxxxxxxx, First Union National Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
1999-C4, facsimile number: 000-000-0000 and, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx, Incorporated, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xxxxxx Balkan, facsimile number (000) 000-0000; (vi) in
the case of the Rating Agencies, (A) Standard & Poor's Ratings Services, 00
Xxxxx Xx., Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage Surveillance
Group, telecopy number: (000) 000-0000; and (B) Duff & Xxxxxx Credit Rating Co.,
00 X. Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: CMBS Monitoring Group,
facsimile number 000-000-0000; or as to each such Person such other address as
may hereafter be furnished by such Person to the parties hereto in writing. Any
communication required or permitted to be delivered to a Certificateholder shall
be deemed to have been duly given when mailed first class, postage prepaid, to
the address of such Holder as shown in the Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
213
SECTION 11.07. Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such conveyance is
deemed to be a pledge of security for a loan, however, the Depositor intends
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor also intends and agrees
that, in such event, the Depositor shall be deemed to have granted to the
Trustee (in such capacity) a first priority security interest in the Depositor's
entire right, title and interest in and to the assets constituting the Trust
Fund.
SECTION 11.08. Xxxxxx Act.
Any provisions required to be contained in this Agreement by Section
126 of Article 4-A of the New York Real Property Law are hereby incorporated
herein, and such provisions shall be in addition to those conferred or imposed
by this Agreement; provided, however, that to the extent that such Section 126
shall not have any effect, and if said Section 126 should at any time be
repealed or cease to apply to this Agreement or be construed by judicial
decision to be inapplicable, said Section 126 shall cease to have any further
effect upon the provisions of this Agreement. In case of a conflict between the
provisions of this Agreement and any mandatory provisions of Article 4-A of the
New York Real Property Law, such mandatory provisions of said Article 4-A shall
prevail, provided that if said Article 4-A shall not apply to this Agreement,
should at any time be repealed, or cease to apply to this Agreement or be
construed by judicial decision to be inapplicable, such mandatory provisions of
such Article 4-A shall cease to have any further effect upon the provisions of
this Agreement.
SECTION 11.09. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. This
Agreement may not be amended in any manner that would adversely affect the
rights of any third party beneficiary hereof without its consent. No other
person, including, without limitation, any Mortgagor, shall be entitled to any
benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.10. Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
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SECTION 11.11. Notices to Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been
cured;
(iii) the resignation or termination of the Trustee, the
Master Servicer or the Special Servicer;
(iv) the repurchase of Mortgage Loans by either of the
Mortgage Loan Sellers pursuant to either of the Mortgage Loan
Purchase Agreements;
(v) any change in the location of the Distribution Account;
(vi) the final payment to any Class of Certificateholders; and
(vii) any sale or disposition of any Mortgage Loan or REO
Property.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee; and
(ii) any change in the location of the Certificate Account.
(c) The Special Servicer shall furnish each Rating Agency with
respect to a non-performing or defaulted Mortgage Loan such information as the
Rating Agency shall reasonably request and which the Special Servicer can
reasonably provide in accordance with applicable law.
(d) To the extent applicable, each of the Master Servicer and the
Special Servicer shall promptly furnish to each Rating Agency copies of the
following items:
(i) each of its annual statements as to compliance described
in Section 3.13;
(ii) each of its annual independent public accountants'
servicing reports described in Section 3.14;
215
(iii) any Officers' Certificate delivered to the Trustee
pursuant to Section 4.03(c) or 3.08; and
(iv) each of the reports described in Section 3.12(a) and the
statements and reports described in Sections 3.12(b), 3.12(c) and
3.12(d).
(e) The Trustee shall (i) make available to each Rating Agency, upon
reasonable notice, the items described in Section 3.15(a) and (ii) promptly
deliver to each Rating Agency a copy of any notices given pursuant to Section
7.03(a) or Section 7.03(b).
(f) The Trustee shall promptly deliver to each Rating Agency a copy
of each statement or report described in Section 4.02.
(g) Each of the Trustee, the Master Servicer and the Special
Servicer shall provide to each Rating Agency such other information with respect
to the Mortgage Loans and the Certificates, to the extent such party possesses
such information, as such Rating Agency shall reasonably request.
(h) Notwithstanding any provision herein to the contrary each of the
Master Servicer, the Special Servicer or the Trustee shall deliver to any
Underwriter any report prepared by such party hereunder upon request.
SECTION 11.12. Complete Agreement.
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
216
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
FIRST UNION COMMERCIAL MORTGAGE
SECURITIES, INC.
Depositor
By:_________________________________
Name: Xxxxx Xxxxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
Master Servicer
By:_________________________________
Name: Xxxxxxx X. Xxxx
Title: Vice President
ORIX REAL ESTATE CAPITAL MARKETS, LLC
Special Servicer
By:_________________________________
Name: Xxxxx X. Xxxxx
Title: Chief Operating Officer
NORWEST BANK MINNESOTA NATIONAL
ASSOCIATION
Trustee
By:_________________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President
217
EXHIBIT A-1
CLASS A-1 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: 7.184% per annum Class Principal Balance of the
Class A-1 Certificates as of the
Closing Date: $206,000,000
Date of Pooling and Servicing Agreement: Initial Certificate Principal
as of December 1, 1999 Balance of this Class A-1
Certificate as of the Closing
Date: $206,000,000
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota,
National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1 CUSIP No. 337378 AA 1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS J, CLASS K, CLASS L, CLASS M AND CLASS N CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
AND THE CLASS A-2 CERTIFICATES MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS SUCH PLAN QUALIFIES AS AN ACCREDITED INVESTOR AS DEFINED IN RULE
501(A)(1) OF REGULATION D UNDER THE SECURITIES ACT AND EITHER (1) AT THE TIME OF
SUCH TRANSFER, THE CERTIFICATES ARE RATED IN ONE OF THE TOP THREE RATING
CATEGORIES BY AT LEAST ONE RATING AGENCY, OR (2) THE PURCHASER IS AN INSURANCE
COMPANY GENERAL ACCOUNT THAT IS ELIGIBLE FOR, AND
2
SATISFIES ALL OF THE REQUIREMENTS OF, SECTION III OF PROHIBITED TRANSACTION
CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED
TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL
NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class A-1 Certificate (obtained by dividing the
principal amount of this Class A-1 Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class A-1 Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class A-1
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC (in
such capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement), and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class A-1 Certificates
on the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class A-1 Certificates will be made by Norwest
Bank Minnesota, National Association, as paying agent (the "Paying Agent"), by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or
3
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate, but taking into account possible
future distributions of Additional Interest) will be made in like manner, but
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-1 Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class A-1
Certificates are exchangeable for new Class A-1 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class A-1 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
4
No service charge will be imposed for any registration of transfer or
exchange of Class A-1 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class A-1
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Class A-1 Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
5
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
6
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December __, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:___________________________________
Authorized Representative
7
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:___________________________________
Authorized Representative
8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated: _________________________
------------------------------------------
Signature by or on behalf of Assignor
------------------------------------------
Signature Guaranteed
9
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _______________.
Distributions made by check (such check to be made payable to____________)
and all applicable statements and notices should be mailed to__________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
10
EXHIBIT A-2-1
CLASS A-2 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: 7.390% per annum Class Principal Balance of the
Class A-2 Certificates as of the
Closing Date: $447,232,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal
December 1, 1999 Balance of this Class A-2
Certificate as of the Closing
Date: $400,000,000
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota,
National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1 CUSIP No. 337378 AB 9
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS J, CLASS K, CLASS L, CLASS M AND CLASS N CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
AND THE CLASS A-1 CERTIFICATES MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS SUCH PLAN QUALIFIES AS AN ACCREDITED INVESTOR AS DEFINED IN RULE
501(A)(1) OF REGULATION D UNDER THE SECURITIES ACT AND EITHER (1) AT THE TIME OF
SUCH TRANSFER, THE CERTIFICATES ARE RATED IN ONE OF THE TOP THREE RATING
CATEGORIES BY AT LEAST ONE RATING AGENCY, OR (2) THE PURCHASER IS AN INSURANCE
COMPANY GENERAL ACCOUNT THAT IS ELIGIBLE FOR, AND SATISFIES ALL OF THE
REQUIREMENTS OF, SECTION III OF PROHIBITED
2
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED,
AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class A-2 Certificate (obtained by dividing the
principal amount of this Class A-2 Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class A-2 Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class A-2
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC (in
such capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class A-2 Certificates
on the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class A-2 Certificates will be made by Norwest
Bank Minnesota, National Association, as paying agent (the "Paying Agent"), by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate
3
Register. Notwithstanding the foregoing, the final distribution on this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, but taking into account possible future distributions of Additional
Interest) will be made in like manner, but only upon presentation and surrender
of this Certificate at the offices of the Certificate Registrar or such other
location specified in the notice to the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-2 Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class A-2
Certificates are exchangeable for new Class A-2 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class A-2 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class A-2 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax
4
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class A-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Class A-2 Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
5
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
6
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December __, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:___________________________________
Authorized Representative
7
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:___________________________________
Authorized Representative
8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated: ____________________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
9
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _______________.
Distributions made by check (such check to be made payable to ___________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by _______________________________, the
Assignee named above, or _______________________________________, as its agent.
10
EXHIBIT A-2-2
CLASS A-2 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: 7.390% per annum Class Principal Balance of the
Class A-2 Certificates as of the
Closing Date: $447,232,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal
December 1, 1999 Balance of this Class A-2
Certificate as of the Closing
Date: $47,232,000
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota,
National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 2 CUSIP No. 337378 AB 9
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS B, CLASS C, CLASS D, CLASS E, CLASS F, CLASS G,
CLASS H, CLASS J, CLASS K, CLASS L, CLASS M AND CLASS N CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
AND THE CLASS A-1 CERTIFICATES MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS SUCH PLAN QUALIFIES AS AN ACCREDITED INVESTOR AS DEFINED IN RULE
501(A)(1) OF REGULATION D UNDER THE SECURITIES ACT AND EITHER (1) AT THE TIME OF
SUCH TRANSFER, THE CERTIFICATES ARE RATED IN ONE OF THE TOP THREE RATING
CATEGORIES BY AT LEAST ONE RATING AGENCY, OR (2) THE PURCHASER IS AN INSURANCE
COMPANY GENERAL ACCOUNT THAT IS ELIGIBLE FOR, AND SATISFIES ALL OF THE
REQUIREMENTS OF, SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60.
EACH PERSON WHO ACQUIRES THIS
2
CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE
SATISFIED, AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE
FOREGOING.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class A-2 Certificate (obtained by dividing the
principal amount of this Class A-2 Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class A-2 Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class A-2
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC (in
such capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class A-2 Certificates
on the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class A-2 Certificates will be made by Norwest
Bank Minnesota, National Association, as paying agent (the "Paying Agent"), by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined
3
without regard to any possible future reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, but
taking into account possible future distributions of Additional Interest) will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appears in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-2 Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class A-2
Certificates are exchangeable for new Class A-2 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class A-2 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class A-2 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax
4
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class A-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Class A-2 Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
5
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
6
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December __, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:___________________________________
Authorized Representative
7
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:___________________________________
Authorized Representative
8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated: ____________________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
9
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _______________.
Distributions made by check (such check to be made payable to ___________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by _______________________________, the
Assignee named above, or _______________________________________, as its agent.
10
EXHIBIT A-4-1
CLASS IO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Aggregate Certificate Notional
Amount of all Class IO
Certificates as of the Closing
Date: $885,738,326
Date of Pooling and Servicing Agreement: Certificate Notional Amount of
as of December 1, 1999 this Class IO Certificate as of
the Closing Date: $400,000,000
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota,
National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AC 7
THIS CERTIFICATE IS NOT ENTITLED TO INTEREST ON THE CERTIFICATE NOTIONAL AMOUNT,
BUT IS ENTITLED TO RECEIVE INTEREST ON ITS COMPONENTS AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK
CORPORATION ("DTC"), TO THE DEPOSITOR, THE MASTER SERVICER, THE TRUSTEE, THE
CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS DECEMBER 17, 1999. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR
THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR
(WITHIN THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $282.00 OF OID
PER $1,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY IS
10.265% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $.33 PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER
RATE.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO "ANY
EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN"
2
DESCRIBED BY SECTION 4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN
ASSETS OF THE FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A
"PLAN") UNLESS SUCH PLAN QUALIFIES AS AN ACCREDITED INVESTOR AS DEFINED IN RULE
501(A)(1) OF REGULATION D UNDER THE SECURITIES ACT AND EITHER (1) AT THE TIME OF
SUCH TRANSFER, THE CERTIFICATES ARE RATED IN ONE OF THE TOP THREE RATING
CATEGORIES BY AT LEAST ONE RATING AGENCY, OR (2) THE PURCHASER IS AN INSURANCE
COMPANY GENERAL ACCOUNT THAT IS ELIGIBLE FOR, AND SATISFIES ALL OF THE
REQUIREMENTS OF, SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60.
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class IO Certificate in that certain beneficial
ownership interest evidenced by all the Class IO Certificates in the Trust Fund
created pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among First Union Commercial Mortgage Securities, Inc.
(herein called the "Depositor", which term includes any successor entity under
the Agreement), First Union National Bank (in such capacity, herein called the
"Master Servicer", which term includes any successor entity under the
Agreement), ORIX Real Estate Capital Markets, LLC (in such capacity, herein
called the "Special Servicer", which term includes any successor entity under
the Agreement), and Norwest Bank Minnesota, National Association (herein called
the "Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest
3
evidenced by this Certificate and the amount required to be distributed to the
Holders of the Class IO Certificates on the applicable Distribution Date
pursuant to the Agreement. The Pass-Through Rate applicable to each Component of
the Class IO Certificates for each Distribution Date will equal the excess, if
any, of the REMIC II Remittance Rate for such Distribution Date over the
Pass-Through Rate then applicable to the corresponding Class of Sequential Pay
Certificates. All distributions made under the Agreement on the Class IO
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it appears
in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate will be made in like manner, but only upon
presentation and surrender of this Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to the Holder hereof of
such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class IO Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class IO
Certificates are exchangeable for new Class IO Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class IO Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class IO Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax
4
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class IO Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Class IO Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
5
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December __, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:___________________________________
Authorized Representative
6
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:___________________________________
Authorized Representative
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated: _________________________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
8
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _______________.
Distributions made by check (such check to be made payable to ___________)
and all applicable statements and notices should be mailed to__________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
9
EXHIBIT A-4-2
CLASS IO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Aggregate Certificate Notional
Amount of all Class IO
Certificates as of the Closing
Date: $885,738,326
Date of Pooling and Servicing Agreement: Certificate Notional Amount of
as of December 1, 1999 this Class IO Certificate as of
the Closing Date: $400,000,000
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota,
National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AC 7
THIS CERTIFICATE IS NOT ENTITLED TO INTEREST ON THE CERTIFICATE NOTIONAL AMOUNT,
BUT IS ENTITLED TO RECEIVE INTEREST ON ITS COMPONENTS AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS DECEMBER 17, 1999. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR
THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR
(WITHIN THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $282.00 OF OID
PER $1,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY IS
10.265% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $.33 PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER
RATE.
2
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO "ANY
EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS SUCH PLAN QUALIFIES AS AN ACCREDITED INVESTOR AS DEFINED IN RULE
501(A)(1) OF REGULATION D UNDER THE SECURITIES ACT AND EITHER (1) AT THE TIME OF
SUCH TRANSFER, THE CERTIFICATES ARE RATED IN ONE OF THE TOP THREE RATING
CATEGORIES BY AT LEAST ONE RATING AGENCY, OR (2) THE PURCHASER IS AN INSURANCE
COMPANY GENERAL ACCOUNT THAT IS ELIGIBLE FOR, AND SATISFIES ALL OF THE
REQUIREMENTS OF, SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60.
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class IO Certificate in that certain beneficial
ownership interest evidenced by all the Class IO Certificates in the Trust Fund
created pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among First Union Commercial Mortgage Securities, Inc.
(herein called the "Depositor", which term includes any successor entity under
the Agreement), First Union National Bank (in such capacity, herein called the
"Master Servicer", which term includes any successor entity under the
Agreement), ORIX Real Estate Capital Markets, LLC (in such capacity, herein
called the "Special Servicer", which term includes any successor entity under
the Agreement), and Norwest Bank Minnesota, National Association (herein called
the "Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the
3
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to the Holders of the Class IO Certificates on the
applicable Distribution Date pursuant to the Agreement. The Pass-Through Rate
applicable to each Component of the Class IO Certificates for each Distribution
Date will equal the excess, if any, of the REMIC II Remittance Rate for such
Distribution Date over the Pass-Through Rate then applicable to the
corresponding Class of Sequential Pay Certificates. All distributions made under
the Agreement on the Class IO Certificates will be made by Norwest Bank
Minnesota, National Association, as paying agent (the "Paying Agent"), by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Paying Agent with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class IO Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class IO
Certificates are exchangeable for new Class IO Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class IO Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
4
No service charge will be imposed for any registration of transfer or
exchange of Class IO Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class IO
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Class IO Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
5
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December __, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:___________________________________
Authorized Representative
6
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:___________________________________
Authorized Representative
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated: _________________________
---------------------------------------
Signature by or on behalf of Assignor
---------------------------------------
Signature Guaranteed
8
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _______________.
Distributions made by check (such check to be made payable to ___________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
9
EXHIBIT A-4-3
CLASS IO COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Variable Aggregate Certificate Notional
Amount of all Class IO
Certificates as of the Closing
Date: $885,738,326
Date of Pooling and Servicing Agreement: Certificate Notional Amount of
as of December 1, 1999 this Class IO Certificate as of
the Closing Date: $85,738,326
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota,
National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AC 7
THIS CERTIFICATE IS NOT ENTITLED TO INTEREST ON THE CERTIFICATE NOTIONAL AMOUNT,
BUT IS ENTITLED TO RECEIVE INTEREST ON ITS COMPONENTS AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS DECEMBER 17, 1999. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR
THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR
(WITHIN THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $282.00 OF OID
PER $1,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY IS
10.265% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $.33 PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER
RATE.
2
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO "ANY
EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS SUCH PLAN QUALIFIES AS AN ACCREDITED INVESTOR AS DEFINED IN RULE
501(A)(1) OF REGULATION D UNDER THE SECURITIES ACT AND EITHER (1) AT THE TIME OF
SUCH TRANSFER, THE CERTIFICATES ARE RATED IN ONE OF THE TOP THREE RATING
CATEGORIES BY AT LEAST ONE RATING AGENCY, OR (2) THE PURCHASER IS AN INSURANCE
COMPANY GENERAL ACCOUNT THAT IS ELIGIBLE FOR, AND SATISFIES ALL OF THE
REQUIREMENTS OF, SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60.
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND WILL NOT
ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class IO Certificate in that certain beneficial
ownership interest evidenced by all the Class IO Certificates in the Trust Fund
created pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among First Union Commercial Mortgage Securities, Inc.
(herein called the "Depositor", which term includes any successor entity under
the Agreement), First Union National Bank (in such capacity, herein called the
"Master Servicer", which term includes any successor entity under the
Agreement), ORIX Real Estate Capital Markets, LLC (in such capacity, herein
called the "Special Servicer", which term includes any successor entity under
the Agreement), and Norwest Bank Minnesota, National Association (herein called
the "Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the
3
close of business on the last Business Day of the month immediately preceding
the month of such distribution (the "Record Date"), in an amount equal to the
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to the Holders of the Class IO Certificates on the
applicable Distribution Date pursuant to the Agreement. The Pass-Through Rate
applicable to each Component of the Class IO Certificates for each Distribution
Date will equal the excess, if any, of the REMIC II Remittance Rate for such
Distribution Date over the Pass-Through Rate then applicable to the
corresponding Class of Sequential Pay Certificates. All distributions made under
the Agreement on the Class IO Certificates will be made by Norwest Bank
Minnesota, National Association, as paying agent (the "Paying Agent"), by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Paying Agent with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions), or otherwise by check mailed to the address of
such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class IO Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class IO
Certificates are exchangeable for new Class IO Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class IO Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
4
No service charge will be imposed for any registration of transfer or
exchange of Class IO Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class IO
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Class IO Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
5
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December __, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:___________________________________
Authorized Representative
6
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:___________________________________
Authorized Representative
7
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
Dated: _________________________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
8
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _______________.
Distributions made by check (such check to be made payable to ___________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
9
EXHIBIT A-5
CLASS B COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Lesser of 7.617% per annum Class Principal Balance of the
or the applicable Weighted Average REMIC I Class B Certificates as of the
Remittance Rate Closing Date: $46,501,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal
December 1, 1999 Balance of this Class B
Certificate as of the Closing
Date: $46,501,000
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota,
National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AD 5
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES AND THE CLASS IO CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES
AND THE CLASS A-2 CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H,
CLASS J, CLASS K,
2
CLASS L, CLASS M AND CLASS N CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO,
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class B Certificate (obtained by dividing the
principal amount of this Class B Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class B Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class B
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC (in
such capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class B Certificates on
the applicable Distribution Date pursuant to the Agreement. The Pass-Through
Rate applicable to the Class B Certificates as of each Distribution Date will
equal the lesser of 7.617% per annum and the applicable Weighted Average REMIC I
Remittance Rate for such Distribution Date. All distributions made under the
Agreement on the Class B Certificates will be made by Norwest Bank Minnesota,
National Association, as paying agent (the "Paying Agent"), by
3
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate,
but taking into account possible future distributions of Additional Interest)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appears in the
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class B Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class B
Certificates are exchangeable for new Class B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new
4
Class B Certificates in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class B Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class B
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Class B Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this
5
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of the Trust Fund (or designated portions thereof) as a REMIC, without the
consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
6
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December ___, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:___________________________________
Authorized Representative
7
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:___________________________________
Authorized Representative
8
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated: ______________________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
9
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _______________.
Distributions made by check (such check to be made payable to ___________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
10
EXHIBIT A-6
CLASS C COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Lesser of 7.793% per annum Class Principal Balance of the
or the applicable Weighted Average REMIC I Class C Certificates as of the
Remittance Rate Closing Date: $42,072,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal
December 1, 1999 Balance of this Class C
Certificate as of the Closing
Date: $42,072,000
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank
Minnesota, National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AE 3
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO CERTIFICATES AND THE CLASS B CERTIFICATES OF THE SAME
SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT"
2
(A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D
OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES AND THE CLASS B CERTIFICATES OF THE SAME SERIES ARE
REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS D, CLASS E, CLASS F, CLASS G, CLASS
H, CLASS J, CLASS K, CLASS L, CLASS M AND CLASS N CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class C Certificate (obtained by dividing the
principal amount of this Class C Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class C Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class C
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC (in
such capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately
3
following (each, a "Determination Date"). Distributions will be made commencing
on the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class C Certificates on the applicable Distribution Date pursuant to the
Agreement. The Pass-Through Rate applicable to the Class C Certificates as of
each Distribution Date will equal the lesser of 7.793% per annum and the
applicable Weighted Average REMIC I Remittance Rate for such Distribution Date.
All distributions made under the Agreement on the Class C Certificates will be
made by Norwest Bank Minnesota, National Association, as paying agent (the
"Paying Agent"), by wire transfer of immediately available funds to the account
of the Person entitled thereto at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided the Paying
Agent with wiring instructions no less than five Business Days prior to the
related Record Date (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions), or otherwise by check mailed
to the address of such Certificateholder as it appears in the Certificate
Register. Notwithstanding the foregoing, the final distribution on this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, but taking into account possible future distributions of Additional
Interest) will be made in like manner, but only upon presentation and surrender
of this Certificate at the offices of the Certificate Registrar or such other
location specified in the notice to the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
4
The Class C Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class C
Certificates are exchangeable for new Class C Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class C Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class C Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class C Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class C Certificate without
registration or qualification. Any Class C Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class C Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class C Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class C
Certificates.
5
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Class C Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
6
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
7
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December ___, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:___________________________________
Authorized Representative
8
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:___________________________________
Authorized Representative
9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
Dated: ______________________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
10
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _______________.
Distributions made by check (such check to be made payable to ___________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
11
EXHIBIT A-7
CLASS D COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Lesser of 7.936% per annum Class Principal Balance of the
or the applicable Weighted Average REMIC I Class D Certificates as of the
Remittance Rate Closing Date: $13,286,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal
December 1, 1999 Balance of this Class D
Certificate as of the Closing
Date: $13,286,000
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank
Minnesota, National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AF 0
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS B CERTIFICATES AND THE CLASS
C CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT"
2
(A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D
OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES AND THE CLASS C
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION
OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN
ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS E, CLASS
F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M AND CLASS N CERTIFICATES
OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class D Certificate (obtained by dividing the
principal amount of this Class D Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class D Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class D
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC (in
such capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately
3
following (each, a "Determination Date"). Distributions will be made commencing
on the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class D Certificates on the applicable Distribution Date pursuant to the
Agreement. The Pass-Through Rate applicable to the Class D Certificates as of
each Distribution Date will equal the lesser of 7.936% per annum and the
applicable Weighted Average REMIC I Remittance Rate for such Distribution Date.
All distributions made under the Agreement on the Class D Certificates will be
made by Norwest Bank Minnesota, National Association, as paying agent (the
"Paying Agent"), by wire transfer of immediately available funds to the account
of the Person entitled thereto at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided the Paying
Agent with wiring instructions no less than five Business Days prior to the
related Record Date (which wiring instructions may be in the form of a standing
order applicable to all subsequent distributions), or otherwise by check mailed
to the address of such Certificateholder as it appears in the Certificate
Register. Notwithstanding the foregoing, the final distribution on this
Certificate (determined without regard to any possible future reimbursement of
any Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, but taking into account possible future distributions of Additional
Interest) will be made in like manner, but only upon presentation and surrender
of this Certificate at the offices of the Certificate Registrar or such other
location specified in the notice to the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
4
The Class D Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class D
Certificates are exchangeable for new Class D Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class D Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class D Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class D Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class D Certificate without
registration or qualification. Any Class D Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class D Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class D Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class D
Certificates.
5
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Class D Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
6
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
7
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December __, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:__________________________________
Authorized Representative
8
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:_________________________________
Authorized Representative
9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:______________________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
10
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _______________.
Distributions made by check (such check to be made payable to ___________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
11
EXHIBIT A-8
CLASS E COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Weighted Average REMIC I Class Principal Balance of the
Remittance Rate Class E Certificates as of the
Closing Date: $28,787,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal
December 1, 1999 Balance of this Class E
Certificate as of the Closing
Date: $28,787,000
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota,
National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AG 8
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES AND THE CLASS D CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
2
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS DECEMBER 17, 1999. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR
THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR
(WITHIN THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $23.00 OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS
8.395% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $.013 PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER
RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES
AND THE CLASS D CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L,
CLASS M AND CLASS N CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class E Certificate (obtained by dividing the
principal amount of this Class E Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class E Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class E
Certificates in the Trust Fund created
3
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among First Union Commercial Mortgage Securities, Inc. (herein
called the "Depositor", which term includes any successor entity under the
Agreement), First Union National Bank (in such capacity, herein called the
"Master Servicer", which term includes any successor entity under the
Agreement), ORIX Real Estate Capital Markets, LLC (in such capacity, herein
called the "Special Servicer", which term includes any successor entity under
the Agreement) and Norwest Bank Minnesota, National Association (herein called
the "Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class E Certificates on
the applicable Distribution Date pursuant to the Agreement. The Pass-Through
Date applicable to the Class E Certificates on each Distribution Date will equal
the Weighted Average REMIC I Remittance Rate. All distributions made under the
Agreement on the Class E Certificates will be made by Norwest Bank Minnesota,
National Association, as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate, but taking into account
possible future distributions of Additional Interest) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this
4
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class E Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class E
Certificates are exchangeable for new Class E Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class E Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class E Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably
5
satisfactory to the Certificate Registrar to the effect that such transfer may
be made without registration under the Securities Act (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar in
their respective capacities as such), together with the written certification(s)
as to the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee or
the Certificate Registrar is obligated to register or qualify the Class E
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class E Certificate without registration or qualification. Any Class E
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class E Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class E Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class E
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Class E Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being
6
less than 1% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
7
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December ___, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:___________________________________
Authorized Representative
8
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:___________________________________
Authorized Representative
9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated: ________________________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
10
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _______________.
Distributions made by check (such check to be made payable to ___________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
11
EXHIBIT A-9
CLASS F COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: Weighted Average REMIC I Class Principal Balance of the
Remittance Rate Class F Certificates as of the
Closing Date: $13,286,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal
December 1, 1999 Balance of this Class F
Certificate as of the Closing
Date: $13,286,000
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota,
National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AH 6
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES AND THE CLASS E CERTIFICATES OF THE SAME
SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT"
2
(A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D
OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS DECEMBER 17, 1999. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR
THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR
(WITHIN THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $73.00 OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS
9.168% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $.25 PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER
RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES,
THE CLASS D CERTIFICATES AND THE CLASS E CERTIFICATES OF THE SAME SERIES ARE
REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS G, CLASS H, CLASS J, CLASS K, CLASS
L, CLASS M AND CLASS N CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class F Certificate (obtained by dividing the
principal amount of this Class F Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class F Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class F
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any
3
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Master Servicer", which term includes any successor
entity under the Agreement), ORIX Real Estate Capital Markets, LLC (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class F Certificates on
the applicable Distribution Date pursuant to the Agreement. The Pass-Through
Rate applicable to the Class F Certificates on each Distribution Date will equal
the Weighted Average REMIC I Remittance Rate. All distributions made under the
Agreement on the Class F Certificates will be made by Norwest Bank Minnesota,
National Association, as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate, but taking into account
possible future distributions of Additional Interest) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the
4
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class F Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class F
Certificates are exchangeable for new Class F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class F Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
5
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class F Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class F Certificate without
registration or qualification. Any Class F Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class F Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class F Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class F
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Class F Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
6
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
7
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December __, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:___________________________________
Authorized Representative
8
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:__________________________________
Authorized Representative
9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:__________________________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
10
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _______________.
Distributions made by check (such check to be made payable to ___________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
11
EXHIBIT A-10
CLASS G COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: 6.500% per annum Class Principal Balance of the
Class G Certificates as of the
Closing Date: $33,215,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal
December 1, 1999 Balance of this Class G
Certificate as of the Closing
Date: $33,215,000
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota,
National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AJ 2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES AND THE CLASS F
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
2
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS DECEMBER 17, 1999. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR
THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR
(WITHIN THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $293.00 OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS
11.185% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $1.10 PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER
RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES,
THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES AND THE CLASS F CERTIFICATES
OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF
THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS H, CLASS J, CLASS K,
CLASS L, CLASS M AND CLASS N CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO,
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class G Certificate (obtained by dividing the
principal amount of this Class G Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class G Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class G
Certificates in the Trust Fund created
3
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among First Union Commercial Mortgage Securities, Inc. (herein
called the "Depositor", which term includes any successor entity under the
Agreement), First Union National Bank (in such capacity, herein called the
"Master Servicer", which term includes any successor entity under the
Agreement), ORIX Real Estate Capital Markets, LLC (in such capacity, herein
called the "Special Servicer", which term includes any successor entity under
the Agreement) and Norwest Bank Minnesota, National Association (herein called
the "Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class G Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class G Certificates will be made by Norwest
Bank Minnesota, National Association, as paying agent (the "Paying Agent"), by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate,
but taking into account possible future distributions of Additional Interest)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appears in the
4
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class G Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class G
Certificates are exchangeable for new Class G Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class G Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class G Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
5
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class G Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class G Certificate without
registration or qualification. Any Class G Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class G Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class G Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class G
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Class G Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
6
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
7
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December __, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:___________________________________
Authorized Representative
8
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:__________________________________
Authorized Representative
9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:__________________________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
10
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _______________.
Distributions made by check (such check to be made payable to ___________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
11
EXHIBIT A-11
CLASS H COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: 6.500% Class Principal Balance of the
Class H Certificates as of the
Closing Date: $11,072,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal
December 1, 1999 Balance of this Class H
Certificate as of the Closing
Date: $11,072,000
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota,
National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 XX 0
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F
CERTIFICATES AND THE CLASS G CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
2
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS DECEMBER 17, 1999. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR
THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR
(WITHIN THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $328.00 OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS
11.666% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $1.06 PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER
RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES,
THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES AND
THE CLASS G CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS
J, CLASS K, CLASS L, CLASS M AND CLASS N CERTIFICATES OF THE SAME SERIES IS
REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class H Certificate (obtained by dividing the
principal amount of this Class H Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class H Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain
3
beneficial ownership interest evidenced by all the Class H Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among First Union Commercial Mortgage
Securities, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Master Servicer", which term includes any successor
entity under the Agreement), ORIX Real Estate Capital Markets, LLC (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class H Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class H Certificates will be made by Norwest
Bank Minnesota, National Association, as paying agent (the "Paying Agent"), by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate,
but taking into account possible future distributions of Additional Interest)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed
4
to the address of the Holder that surrenders this Certificate as such address
last appears in the Certificate Register or to any such other address of which
the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class H Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class H
Certificates are exchangeable for new Class H Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class H Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class H Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without
5
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class H
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class H Certificate without registration or qualification. Any Class H
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class H Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class H Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class H
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Class H Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being
6
less than 1% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
7
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December __, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:___________________________________
Authorized Representative
8
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:___________________________________
Authorized Representative
9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:________________________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
10
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _______________.
Distributions made by check (such check to be made payable to ___________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
11
EXHIBIT A-12
CLASS J COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: 6.500% per annum Class Principal Balance of the
Class J Certificates as of the
Closing Date: $2,214,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal
December 1, 1999 Balance of this Class J
Certificate as of the Closing
Date: $2,214,000
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota,
National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AL 7
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F
CERTIFICATES, THE CLASS G CERTIFICATES AND THE CLASS H CERTIFICATES OF THE SAME
SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
2
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS DECEMBER 17, 1999. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR
THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR
(WITHIN THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $374.00 OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS
12.617% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $1.10 PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER
RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES,
THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES,
THE CLASS G CERTIFICATES AND THE CLASS H CERTIFICATES OF THE SAME SERIES ARE
REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS K, CLASS L, CLASS M AND CLASS N
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class J Certificate (obtained by dividing the
principal amount of this Class J Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class J Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial
3
ownership interest evidenced by all the Class J Certificates in the Trust Fund
created pursuant to a Pooling and Servicing Agreement, dated as specified above
(the "Agreement"), among First Union Commercial Mortgage Securities, Inc.
(herein called the "Depositor", which term includes any successor entity under
the Agreement), First Union National Bank (in such capacity, herein called the
"Master Servicer", which term includes any successor entity under the
Agreement), ORIX Real Estate Capital Markets, LLC (in such capacity, herein
called the "Special Servicer", which term includes any successor entity under
the Agreement) and Norwest Bank Minnesota, National Association (herein called
the "Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class J Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class J Certificates will be made by Norwest
Bank Minnesota, National Association, as paying agent (the "Paying Agent"), by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate,
but taking into account possible future distributions of Additional Interest)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed
4
to the address of the Holder that surrenders this Certificate as such address
last appears in the Certificate Register or to any such other address of which
the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class J Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class J
Certificates are exchangeable for new Class J Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class J Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class J Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without
5
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class J
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class J Certificate without registration or qualification. Any Class J
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class J Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class J Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class J
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Class J Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less
6
than 1% of the aggregate Stated Principal Balance of the Mortgage Loans as of
the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
7
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December __, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:__________________________________
Authorized Representative
8
CERTIFICATE OF AUTHENTICATION
This is one of the Class J Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:__________________________________
Authorized Representative
9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:_______________________________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
10
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _______________.
Distributions made by check (such check to be made payable to ___________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
11
EXHIBIT A-13
CLASS K COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: 6.500% per annum Principal Balance of the
Class K Certificates as of the
Closing Date: $6,643,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal
December 1, 1999 Balannce of this Class K
Certificate as of the Closing
Date: $6,643,000
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota,
National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AM 5
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F
CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES AND THE CLASS J
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
2
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS DECEMBER 17, 1999. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR
THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR
(WITHIN THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $431.00 OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS
13.99% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $1.14 PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER
RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES,
THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES,
THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES AND THE CLASS J CERTIFICATES
OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF
THE AGGREGATE PRINCIPAL BALANCE OF THE CLASS L, CLASS M AND CLASS N CERTIFICATES
OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class K Certificate (obtained by dividing the
principal amount of this Class K Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class K Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain
3
beneficial ownership interest evidenced by all the Class K Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among First Union Commercial Mortgage
Securities, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Master Servicer", which term includes any successor
entity under the Agreement), ORIX Real Estate Capital Markets, LLC (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the 15th
day of each month or, if such 15th day is not a Business Day, the Business Day
immediately following (each, a "Distribution Date"), provided, however, that the
Distribution Date will be no earlier than the fourth Business Day following the
Determination Date (as defined below) in the month in which such Distribution
Date occurs. With respect to each Distribution Date, the Determination Date is
the 11th day of each month or, if such 11th day is not a Business Day, the
Business Day immediately following (each, a "Determination Date"). Distributions
will be made commencing on the first Distribution Date specified above, to the
Person in whose name this Certificate is registered at the close of business on
the last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to the Holders of the Class K Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on the Class K Certificates will be made by Norwest Bank Minnesota,
National Association, as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. Notwithstanding the
foregoing, the final distribution on this Certificate (determined without regard
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate, but taking into account
possible future distributions of Additional Interest) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed
4
to the address of the Holder that surrenders this Certificate as such address
last appears in the Certificate Register or to any such other address of which
the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class K Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class K
Certificates are exchangeable for new Class K Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class K Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class K Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without
5
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class K
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class K Certificate without registration or qualification. Any Class K
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class K Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class K Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class K
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Class K Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being
6
less than 1% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
7
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December __, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:__________________________________
Authorized Representative
8
CERTIFICATE OF AUTHENTICATION
This is one of the Class K Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:__________________________________
Authorized Representative
9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
10
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _______________.
Distributions made by check (such check to be made payable to ___________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
11
EXHIBIT A-14
CLASS L COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: 6.500% per annum Class Principal Balance of the
Class L Certificates as of the
Closing Date: $8,858,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal
December 1, 1999 Balance of this Class L
Certificate as of the Closing
Date: $8,858,000
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota,
National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AN 3
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F
CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J
CERTIFICATES AND THE CLASS K CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
2
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS DECEMBER 17, 1999. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR
THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR
(WITHIN THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $446.00 OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS
14.367% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $1.15 PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER
RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES,
THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES,
THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J CERTIFICATES AND
THE CLASS K CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS
M AND CLASS N CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class L Certificate (obtained by dividing the
principal amount of this Class L Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class L Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain
3
beneficial ownership interest evidenced by all the Class L Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among First Union Commercial Mortgage
Securities, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Master Servicer", which term includes any successor
entity under the Agreement), ORIX Real Estate Capital Markets, LLC (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class L Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class L Certificates will be made by Norwest
Bank Minnesota, National Association, as paying agent (the "Paying Agent"), by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate,
but taking into account possible future distributions of Additional Interest)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed
4
to the address of the Holder that surrenders this Certificate as such address
last appears in the Certificate Register or to any such other address of which
the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class L Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class L
Certificates are exchangeable for new Class L Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class L Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class L Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without
5
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder's prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or the
Certificate Registrar is obligated to register or qualify the Class L
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class L Certificate without registration or qualification. Any Class L
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class L Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class L Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class L
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Class L Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being
6
less than 1% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
7
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December __, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:__________________________________
Authorized Representative
8
CERTIFICATE OF AUTHENTICATION
This is one of the Class L Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:__________________________________
Authorized Representative
9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:_______________________________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
10
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _______________.
Distributions made by check (such check to be made payable to ___________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
11
EXHIBIT A-15
CLASS M COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK-CHASE MANHATTAN BANK
COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: 6.500% per annum Principal Balance of the
Class M Certificates as of the
Closing Date: $8,857,000
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal
December 1, 1999 Balance of this Class M
Certificate as of the Closing
Date: $8,857,000
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota,
National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AP 8
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F
CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J
CERTIFICATES, THE CLASS K AND THE CLASS L CERTIFICATES OF THE SAME SERIES TO THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
2
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS DECEMBER 17, 1999. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR
THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR
(WITHIN THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $502.00 OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS
15.593% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $1.00 PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER
RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES,
THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES,
THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J CERTIFICATES,
THE CLASS K CERTIFICATES AND THE CLASS L CERTIFICATES OF THE SAME SERIES ARE
REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE BALANCE OF THE CLASS N CERTIFICATES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class M Certificate (obtained by dividing the
principal amount of this Class M Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class M Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain
3
beneficial ownership interest evidenced by all the Class M Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among First Union Commercial Mortgage
Securities, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Master Servicer", which term includes any successor
entity under the Agreement), ORIX Real Estate Capital Markets, LLC (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class M Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class M Certificates will be made by Norwest
Bank Minnesota, National Association, as paying agent (the "Paying Agent"), by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate,
but taking into account possible future distributions of Additional Interest)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding
4
sentence, will be made by check mailed to the address of the Holder that
surrenders this Certificate as such address last appears in the Certificate
Register or to any such other address of which the Trustee is subsequently
notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class M Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class M
Certificates are exchangeable for new Class M Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class M Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class M Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made
5
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Trustee or the Certificate Registrar in their
respective capacities as such), together with the written certification(s) as to
the facts surrounding such transfer from the Certificateholder desiring to
effect such transfer and/or such Certificateholder's prospective transferee on
which such Opinion of Counsel is based. None of the Depositor, the Trustee or
the Certificate Registrar is obligated to register or qualify the Class M
Certificates under the Securities Act or any other securities law or to take any
action not otherwise required under the Agreement to permit the transfer of any
Class M Certificate without registration or qualification. Any Class M
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class M Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class M Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class M
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Class M Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being
6
less than 1% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
7
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December __, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:__________________________________
Authorized Representative
8
CERTIFICATE OF AUTHENTICATION
This is one of the Class M Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:__________________________________
Authorized Representative
9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:_______________________________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
10
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _______________.
Distributions made by check (such check to be made payable to____________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
11
EXHIBIT A-16
CLASS N COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
Pass-Through Rate: 6.500% per annum Principal Balance of the
Class N Certificates as of the
Closing Date: $17,715,326
Date of Pooling and Servicing Agreement: as of Initial Certificate Principal
December 1, 1999 Balance of this Class N
Certificate as of the Closing
Date: $17,715,326
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota,
National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AQ 6
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F
CERTIFICATES, THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J
CERTIFICATES, THE CLASS K CERTIFICATES, THE CLASS L CERTIFICATES AND THE CLASS M
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN")
UNLESS IT IS AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND
SATISFIES ALL OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60").
EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT
THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
2
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS DECEMBER 17, 1999. ASSUMING
THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF PREPAYMENT USED SOLELY FOR
THE PURPOSES OF APPLYING THE OID RULES TO THE CERTIFICATES EQUAL TO A CPR
(WITHIN THE MEANING OF THE PROSPECTUS SUPPLEMENT) OF 0% (THE "PREPAYMENT
ASSUMPTION"), THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $723.00 OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT, THE YIELD TO MATURITY IS
24.694% PER ANNUM AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $.28 PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL AMOUNT,
COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE
LOANS WILL PREPAY AT A RATE BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER
RATE.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES,
THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F CERTIFICATES,
THE CLASS G CERTIFICATES, THE CLASS H CERTIFICATES, THE CLASS J CERTIFICATES,
THE CLASS K CERTIFICATES, THE CLASS L CERTIFICATES AND THE CLASS M CERTIFICATES
OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION,
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class N Certificate (obtained by dividing the
principal amount of this Class N Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class N Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class N
Certificates in the Trust Fund created
3
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among First Union Commercial Mortgage Securities, Inc. (herein
called the "Depositor", which term includes any successor entity under the
Agreement), First Union National Bank (in such capacity, herein called the
"Master Servicer", which term includes any successor entity under the
Agreement), ORIX Real Estate Capital Markets, LLC (in such capacity, herein
called the "Special Servicer", which term includes any successor entity under
the Agreement) and Norwest Bank Minnesota, National Association (herein called
the "Trustee", which term includes any successor entity under the Agreement), a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount required to be distributed to the Holders of the Class N Certificates on
the applicable Distribution Date pursuant to the Agreement. All distributions
made under the Agreement on the Class N Certificates will be made by Norwest
Bank Minnesota, National Association, as paying agent (the "Paying Agent"), by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate,
but taking into account possible future distributions of Additional Interest)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appears in the
4
Certificate Register or to any such other address of which the Trustee is
subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class N Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class N
Certificates are exchangeable for new Class N Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class N Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class N Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate Registrar
to the effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
5
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with the written certification(s) as to the facts surrounding such transfer from
the Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class N Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class N Certificate without
registration or qualification. Any Class N Certificateholder desiring to effect
such a transfer shall, and by the acceptance of its Class N Certificate agrees
to, indemnify the Trustee, the Certificate Registrar and the Depositor against
any liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer or
exchange of Class N Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class N
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes whatsoever and none of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or any such agent shall be affected by notice
to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Class N Certificates; however, such right to
purchase is subject to the aggregate Stated Principal Balance of the Mortgage
Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Closing Date specified on the
face hereof.
6
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
7
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December __, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:__________________________________
Authorized Representative
8
CERTIFICATE OF AUTHENTICATION
This is one of the Class N Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:__________________________________
Authorized Representative
9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
10
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _______________.
Distributions made by check (such check to be made payable to ___________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
11
EXHIBIT A-17
CLASS R-I COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION COMMERCIAL MORTGAGE SECURITIES, INC.
Date of Pooling and Servicing Agreement: as of Percentage Interest evidenced by
December 1, 1999 this Class R-ICertificate: 100%
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota,
National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, ORIX REAL ESTATE CAPITAL MARKETS, LLC OR
ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS IO, CLASS B,
CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L,
CLASS M AND CLASS N CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 THE ("SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN").
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that [ ] is the registered owner of the Percentage Interest
evidenced by this Class R-I Certificate (as specified above) in that certain
beneficial ownership interest evidenced by all the Class R-I Certificates in the
Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among First Union Commercial Mortgage
Securities, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Master Servicer", which term includes any successor
entity under the Agreement), ORIX Real Estate Capital Markets, LLC (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement), and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement,
2
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount, if any, required to be distributed to the Holders of the Class R-I
Certificates on the applicable Distribution Date pursuant to the Agreement. All
distributions made under the Agreement on this Class R-I Certificate will be
made by check mailed to the address of the Person entitled thereto, as such name
and address appear in the Certificate Register. Notwithstanding the foregoing,
the final distribution on this Certificate will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-I Certificates are issuable in fully registered form only
without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-I Certificates are exchangeable for new
Class R-I Certificates in authorized denominations evidencing the same aggregate
Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new
3
Class R-I Certificates in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or transferees.
No transfer of any Class R-I Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If a transfer of any R-I Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor, the Underwriters or their affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of
the Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class R-I Certificates under the Securities
Act or any other securities law or to take any action not otherwise required
under the Agreement to permit the transfer of any Class R-I Certificate without
registration or qualification. Any Class R-I Certificateholder desiring to
effect such a transfer shall, and by the acceptance of its Class R-I Certificate
agrees to, indemnify the Trustee, the Certificate Registrar and the Depositor
against any liability that may result if the transfer is not so exempt or is not
made in accordance with such federal and state laws.
No transfer of this Class R-I Certificate or any interest therein shall be
made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class R-I Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of transfer of
this Class R-I Certificate, the Certificate Registrar shall have the right to
require the prospective transferee of such Certificate, if it is not a Plan or
Person described in clause (B) of the preceding sentence, to execute a
certification to that effect substantially in the form of Exhibit H to the
Agreement.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized Norwest Bank Minnesota, National Association, as paying
agent (the "Paying Agent"), under clause (ii)(A) of such Section 5.02(d) to
deliver payments to a Person other than such Person
4
and to have irrevocably authorized the Certificate Registrar under clause
(ii)(B) of such Section 5.02(d) to negotiate the terms of any mandatory sale and
to execute all instruments of Transfer and to do all other things necessary in
connection with any such sale. Each Person holding or acquiring any Ownership
Interest in this Certificate must be a Permitted Transferee and shall promptly
notify the Master Servicer, the Paying Agent and the Certificate Registrar of
any change or impending change in its status as a Permitted Transferee. In
connection with any proposed Transfer of any Ownership Interest in this
Certificate, the Certificate Registrar shall require delivery to it, and shall
not register the Transfer of this Certificate until its receipt of, an affidavit
and agreement substantially in the form attached as Exhibit I-1 to the Agreement
(a "Transfer Affidavit and Agreement") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing and
warranting, among other things, that such Transferee is a Permitted Transferee,
that it is not acquiring its Ownership Interest in this Certificate as a
nominee, trustee or agent for any Person that is not a Permitted Transferee,
that for so long as it retains its Ownership Interest in this Certificate, it
will endeavor to remain a Permitted Transferee, and that it has reviewed the
provisions of Section 5.02(d) of the Agreement and agrees to be bound by them.
Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee, if a Responsible Officer of the Certificate Registrar has actual
knowledge that the proposed Transferee is not a Permitted Transferee, no
Transfer of an Ownership Interest in this Certificate to such proposed
Transferee shall be effected.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit I-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Master Servicer and the
Trustee written notice that it is a "pass-through interest holder" within the
meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring such Ownership Interest, if it is, or is holding such Ownership
Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to qualify, downgrade or withdraw its then-current ratings of any Class of
Certificates; and (b) an Opinion of Counsel, in form and substance satisfactory
to the Certificate Registrar and the Master Servicer, obtained at the expense of
the party seeking such modification of, addition to or elimination of such
provisions (but in no event at the expense of the Trust Fund), to the effect
that such modification of, addition to or elimination of such provisions will
not cause the Trust Fund to (x) cease to qualify as a REMIC or (y) be subject to
an entity-level tax caused by the transfer of this Class R-I Certificate to a
Person which is not a Permitted Transferee, or cause a Person other than the
prospective
5
Transferee to be subject to a REMIC-related tax caused by the transfer of this
Class R-I Certificate to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization" or a "Non-United States Person". A "Disqualified Organization" is
any of (i) the United States, any State or political subdivision thereof, any
possession of the United States, or any agency or instrumentality of any of the
foregoing (other than an instrumentality which is a corporation if all of its
activities are subject to tax and, except for the FHLMC, a majority of its board
of directors is not selected by such governmental unit), (ii) a foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter I of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381 of the Code and (v) any other
Person so designated by the Trustee based upon an Opinion of Counsel provided to
it that the holding of an Ownership Interest in a Class R-I Certificate by such
Person may cause the Trust Fund or any Person having an Ownership Interest in
any Class of Certificates (other than such Person) to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Class R-I Certificate to such Person.
The terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United States,
a corporation, partnership or other entity treated as a corporation or a
partnership for United States federal income tax purposes created or organized
in, or under the laws of, the United States, any state thereof or the District
of Columbia (unless, in the case of a partnership, Treasury regulations are
enacted that provide otherwise), an estate whose income from sources without the
United States is income for United States federal income tax purposes regardless
of its connection of a trade or business within the United States, or a trust if
a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust, all within the
meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer or
exchange of Class R-I Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class R-I
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master
6
Servicer, the Special Servicer, the Trustee, the Paying Agent, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than 1% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
7
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December __, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:__________________________________
Authorized Representative
8
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:__________________________________
Authorized Representative
9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:_________________________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
10
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _______________.
Distributions made by check (such check to be made payable to ___________)
and all applicable statements and notices should be mailed to ________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
11
EXHIBIT A-18
CLASS R-II COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
Date of Pooling and Servicing Agreement: as of Percentage Interest evidenced by
December 1, 1999 this Class R-II Certificate:100%
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota,
National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, BANC ONE CAPITAL MARKETS, LLC OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS IO, CLASS B,
CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L,
CLASS M AND CLASS N CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 THE ("SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN").
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that [ ] is the registered owner of the Percentage
Interest evidenced by this Class R-II Certificate (as specified above) in that
certain beneficial ownership interest evidenced by all the Class R-II
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among First Union
Commercial Mortgage Securities, Inc. (herein called the "Depositor", which term
includes any successor entity under the Agreement), First Union National Bank
(in such capacity, herein called the "Master Servicer", which term includes any
successor entity under the Agreement), ORIX Real Estate Capital Markets, LLC (in
such capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement,
2
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount, if any, required to be distributed to the Holders of the Class R-II
Certificates on the applicable Distribution Date pursuant to the Agreement. All
distributions made under the Agreement on this Class R-II Certificate will be
made by check mailed to the address of the Person entitled thereto, as such name
and address appear in the Certificate Register. Notwithstanding the foregoing,
the final distribution on this Certificate will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-II Certificates are issuable in fully registered form only
without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-II Certificates are exchangeable for new
Class R-II Certificates in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new
3
Class R-II Certificates in authorized denominations evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
No transfer of any Class R-II Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If a transfer of any R-II Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor, the Underwriters or their affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of
the Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class R-II Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class R-II
Certificate without registration or qualification. Any Class R-II
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-II Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of this Class R-II Certificate or any interest therein shall
be made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class R-II Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of transfer of
this Class R-II Certificate, the Certificate Registrar shall have the right to
require the prospective transferee of such Certificate, if it is not a Plan or
Person described in clause (B) of the preceding sentence, to execute a
certification to that effect substantially in the form of Exhibit H to the
Agreement.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized Norwest Bank Minnesota, National Organization, as paying
agent (the "Paying Agent"), under clause (ii)(A) of such Section 5.02(d) to
deliver payments to a Person other than such Person
4
and to have irrevocably authorized the Certificate Registrar under clause
(ii)(B) of such Section 5.02(d) to negotiate the terms of any mandatory sale and
to execute all instruments of Transfer and to do all other things necessary in
connection with any such sale. Each Person holding or acquiring any Ownership
Interest in this Certificate must be a Permitted Transferee and shall promptly
notify the Master Servicer, the Paying Agent and the Certificate Registrar of
any change or impending change in its status as a Permitted Transferee. In
connection with any proposed Transfer of any Ownership Interest in this
Certificate, the Certificate Registrar shall require delivery to it, and shall
not register the Transfer of this Certificate until its receipt of, an affidavit
and agreement substantially in the form attached as Exhibit I-1 to the Agreement
(a "Transfer Affidavit and Agreement") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing and
warranting, among other things, that such Transferee is a Permitted Transferee,
that it is not acquiring its Ownership Interest in this Certificate as a
nominee, trustee or agent for any Person that is not a Permitted Transferee,
that for so long as it retains its Ownership Interest in this Certificate, it
will endeavor to remain a Permitted Transferee, and that it has reviewed the
provisions of Section 5.02(d) of the Agreement and agrees to be bound by them.
Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee, if a Responsible Officer of the Certificate Registrar has actual
knowledge that the proposed Transferee is not a Permitted Transferee, no
Transfer of an Ownership Interest in this Certificate to such proposed
Transferee shall be effected.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit I-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Master Servicer and the
Trustee written notice that it is a "pass-through interest holder" within the
meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring such Ownership Interest, if it is, or is holding such Ownership
Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to qualify, downgrade or withdraw its then-current ratings of any Class of
Certificates; and (b) an Opinion of Counsel, in form and substance satisfactory
to the Certificate Registrar and the Master Servicer, obtained at the expense of
the party seeking such modification of, addition to or elimination of such
provisions (but in no event at the expense of the Trust Fund), to the effect
that such modification of, addition to or elimination of such provisions will
not cause the Trust Fund to (x) cease to qualify as a REMIC or (y) be subject to
an entity-level tax caused by the Transfer of any Class R-II Certificate to a
Person which is not a Permitted Transferee, or cause a Person other than the
prospective
5
Transferee to be subject to a REMIC-related tax caused by the transfer of this
Class R-II Certificate to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization" or a "Non-United States Person". A "Disqualified Organization" is
any of (i) the United States, any State or political subdivision thereof, any
possession of the United States, or any agency or instrumentality of any of the
foregoing (other than an instrumentality which is a corporation if all of its
activities are subject to tax and, except for the FHLMC, a majority of its board
of directors is not selected by such governmental unit), (ii) a foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter I of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381 of the Code and (v) any other
Person so designated by the Trustee based upon an Opinion of Counsel provided to
it that the holding of an Ownership Interest in a Class R-II Certificate by such
Person may cause the Trust Fund or any Person having an Ownership Interest in
any Class of Certificates (other than such Person) to incur a liability for any
federal tax imposed under the Code that would not otherwise be imposed but for
the Transfer of an Ownership Interest in a Class R-II Certificate to such
Person. The terms "United States", "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United States,
a corporation, partnership or other entity treated as a corporation or a
partnership for United States federal income tax purposes created or organized
in, or under the laws of, the United States, any state thereof or the District
of Columbia (unless, in the case of a partnership, Treasury regulations are
enacted that provide otherwise), an estate whose income from sources without the
United States is income for United States federal income tax purposes regardless
of its connection of a trade or business within the United States, or a trust if
a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust, all within the
meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer or
exchange of Class R-II Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class R-II
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master
6
Servicer, the Special Servicer, the Trustee, the Paying Agent, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than 1% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
7
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December __, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:__________________________________
Authorized Representative
8
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:__________________________________
Authorized Representative
9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new Commercial
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Commercial Mortgage Pass-Through
Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
10
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to _____________________________ for the account
of _______________.
Distributions made by check (such check to be made payable to ___________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by ________________________________, the
Assignee named above, or ____________________________________, as its agent.
11
EXHIBIT A-19
CLASS R-III COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C4
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
FIRST UNION NATIONAL BANK
COMMERCIAL MORTGAGE TRUST
Date of Pooling and Servicing Agreement: as of Percentage Interest evidenced by
December 1, 1999 this Class R-III Certificate:
100%
Closing Date: December 17, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans as
of the Cut-Off Date:
$885,738,326
First Distribution Date: January 18, 2000
Master Servicer: First Union National Bank Trustee: Norwest Bank Minnesota,
National Association
Special Servicer: ORIX Real Estate Capital
Markets, LLC
Certificate No. 1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN FIRST UNION
COMMERCIAL MORTGAGE SECURITIES, INC., NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, FIRST UNION NATIONAL BANK, BANC ONE CAPITAL MARKETS, LLC OR ANY OF
THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING
MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS IO, CLASS B,
CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L,
CLASS M AND CLASS N CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 THE ("SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
"EMPLOYEE BENEFIT PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION
4975(E)(1) OF THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE
FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN").
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
CERTIFICATE.
This certifies that [ ] is the registered owner of the Percentage Interest
evidenced by this Class R-III Certificate (as specified above) in that certain
beneficial ownership interest evidenced by all the Class R-III Certificates in
the Trust Fund created pursuant to a Pooling and Servicing Agreement, dated as
specified above (the "Agreement"), among First Union Commercial Mortgage
Securities, Inc. (herein called the "Depositor", which term includes any
successor entity under the Agreement), First Union National Bank (in such
capacity, herein called the "Master Servicer", which term includes any successor
entity under the Agreement), ORIX Real Estate Capital Markets, LLC (in such
capacity, herein called the "Special Servicer", which term includes any
successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, the capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement,
2
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
15th day of each month or, if such 15th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), provided, however, that
the Distribution Date will be no earlier than the fourth Business Day following
the Determination Date (as defined below) in the month in which such
Distribution Date occurs. With respect to each Distribution Date, the
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately following (each, a "Determination
Date"). Distributions will be made commencing on the first Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last Business Day of the month immediately
preceding the month of such distribution (the "Record Date"), in an amount equal
to the product of the Percentage Interest evidenced by this Certificate and the
amount, if any, required to be distributed to the Holders of the Class R-III
Certificates on the applicable Distribution Date pursuant to the Agreement. All
distributions made under the Agreement on this Class R-III Certificate will be
made by check mailed to the address of the Person entitled thereto, as such name
and address appear in the Certificate Register. Notwithstanding the foregoing,
the final distribution on this Certificate will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-III Certificates are issuable in fully registered form only
without coupons in minimum denominations representing Percentage Interests
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class R-III Certificates are exchangeable for new
Class R-III Certificates in authorized denominations evidencing the same
aggregate Percentage Interest, as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new
3
Class R-III Certificates in authorized denominations evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
No transfer of any Class R-III Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If a transfer of any R-III Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor, the Underwriters or their affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the Securities
Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of
the Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class R-III Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Class R-III
Certificate without registration or qualification. Any Class R-III
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-III Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result if
the transfer is not so exempt or is not made in accordance with such federal and
state laws.
No transfer of this Class R-III Certificate or any interest therein shall
be made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class R-III Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of transfer of
this Class R-III Certificate, the Certificate Registrar shall have the right to
require the prospective transferee of such Certificate, if it is not a Plan or
Person described in clause (B) of the preceding sentence, to execute a
certification to that effect substantially in the form of Exhibit H to the
Agreement.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized Norwest Bank Minnesota, National Association, as paying
agent (the "Paying Agent"), under clause (ii)(A) of such Section 5.02(d) to
deliver payments to a Person other than such Person
4
and to have irrevocably authorized the Certificate Registrar under clause
(ii)(B) of such Section 5.02(d) to negotiate the terms of any mandatory sale and
to execute all instruments of Transfer and to do all other things necessary in
connection with any such sale. Each Person holding or acquiring any Ownership
Interest in this Certificate must be a Permitted Transferee and shall promptly
notify the Master Servicer, the Paying Agent and the Certificate Registrar of
any change or impending change in its status as a Permitted Transferee. In
connection with any proposed Transfer of any Ownership Interest in this
Certificate, the Certificate Registrar shall require delivery to it, and shall
not register the Transfer of this Certificate until its receipt of, an affidavit
and agreement substantially in the form attached as Exhibit I-1 to the Agreement
(a "Transfer Affidavit and Agreement") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing and
warranting, among other things, that such Transferee is a Permitted Transferee,
that it is not acquiring its Ownership Interest in this Certificate as a
nominee, trustee or agent for any Person that is not a Permitted Transferee,
that for so long as it retains its Ownership Interest in this Certificate, it
will endeavor to remain a Permitted Transferee, and that it has reviewed the
provisions of Section 5.02(d) of the Agreement and agrees to be bound by them.
Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed
Transferee, if a Responsible Officer of the Certificate Registrar has actual
knowledge that the proposed Transferee is not a Permitted Transferee, no
Transfer of an Ownership Interest in this Certificate to such proposed
Transferee shall be effected.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit I-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Master Servicer and the
Trustee written notice that it is a "pass-through interest holder" within the
meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring such Ownership Interest, if it is, or is holding such Ownership
Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to qualify, downgrade or withdraw its then-current ratings of any Class of
Certificates; and (b) an Opinion of Counsel, in form and substance satisfactory
to the Certificate Registrar and the Master Servicer, obtained at the expense of
the party seeking such modification of, addition to or elimination of such
provisions (but in no event at the expense of the Trust Fund), to the effect
that such modification of, addition to or elimination of such provisions will
not cause the Trust Fund to (x) cease to qualify as a REMIC or (y) be subject to
an entity-level tax caused by the transfer of this Class R-III Certificate to a
Person which is not a Permitted Transferee, or cause a Person other than the
prospective
5
Transferee to be subject to a REMIC-related tax caused by the transfer of this
Class R-III Certificate to a Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization" or a "Non-United States Person". A "Disqualified Organization" is
any of (i) the United States, any State or political subdivision thereof, any
possession of the United States, or any agency or instrumentality of any of the
foregoing (other than an instrumentality which is a corporation if all of its
activities are subject to tax and, except for the FHLMC, a majority of its board
of directors is not selected by such governmental unit), (ii) a foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter I of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381 of the Code and (v) any other
Person so designated by the Trustee based upon an Opinion of Counsel provided to
it that the holding of an Ownership Interest in a Class R-III Certificate by
such Person may cause the Trust Fund or any Person having an Ownership Interest
in any Class of Certificates (other than such Person) to incur a liability for
any federal tax imposed under the Code that would not otherwise be imposed but
for the Transfer of an Ownership Interest in a Class R-III Certificate to such
Person. The terms "United States", "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United States,
a corporation, partnership or other entity treated as a corporation or a
partnership for United States federal income tax purposes created or organized
in, or under the laws of, the United States, any state thereof or the District
of Columbia (unless, in the case of a partnership, Treasury regulations are
enacted that provide otherwise), an estate whose income from sources without the
United States is income for United States federal income tax purposes regardless
of its connection of a trade or business within the United States, or a trust if
a court within the United States is able to exercise primary supervision over
the administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust, all within the
meaning of Section 7701(a)(30) of the Code.
No service charge will be imposed for any registration of transfer or
exchange of Class R-III Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class R-III
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master
6
Servicer, the Special Servicer, the Trustee, the Paying Agent, the Certificate
Registrar or any such agent shall be affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect thereto)
or other liquidation of the last Mortgage Loan or REO Property remaining in the
Trust Fund, and (ii) the purchase by the Depositor, the Master Servicer, the
Special Servicer, or the Majority Subordinate Certificateholder at a price
determined as provided in the Agreement of all Mortgage Loans and each REO
Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer, the Special Servicer, the Majority Subordinate
Certificateholder or the Depositor to purchase from the Trust Fund all Mortgage
Loans and each REO Property remaining therein. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than 1% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) as a
REMIC, without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws
of the State of New York applicable to agreements made and to be performed in
said State, and the obligations, rights and remedies of the Holder hereof shall
be determined in accordance with such laws.
7
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: December __, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Certificate Registrar
By:__________________________________
Authorized Representative
8
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-III Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Authenticating Agent
By:__________________________________
Authorized Representative
9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including
postal zip code of assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we) further direct the Certificate Registrar to issue a new
Commercial Mortgage Pass-Through Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Commercial Mortgage
Pass-Through Certificate to the following address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dated:_______________________________
-------------------------------------
Signature by or on behalf of Assignor
-------------------------------------
Signature Guaranteed
10
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ___________________ for the account of
__________________.
Distributions made by check (such check to be made payable to ___________)
and all applicable statements and notices should be mailed to _________________.
This information is provided by ______________________, the Assignee named
above, or ___________________, as its agent.
11
EXHIBIT B
MORTGAGE LOAN SCHEDULE
The Mortgage Loans transferred pursuant to this Agreement are set forth in Annex
A-1 to the Prospectus Supplement and are hereby incorporated.
B-1
EXHIBIT C-1
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
With respect to each Mortgage Loan, any and all intervening endorsements,
thereon, endorsed on its face or by allonge attached thereto as required by
clause (i) of the definition of Mortgage File.
C-1
EXHIBIT C-2
FORM OF CUSTODIAL CERTIFICATION
[Date]
ORIX Real Estate Capital Markets, LLC
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: [ ]
Xxxxxxx Xxxxx Mortgage Capital, Inc.
World Financial Center
North Tower, Floor [ ]
Xxx Xxxx, Xxx Xxxx 00000
First Union Commercial Mortgage Securities, Inc.
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
First Union National Bank
0000 Xxxxxxxx Xxxxx X URP4, NC 1075
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 1999-C4
Re: First Union National Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C4
Ladies and Gentlemen:
Norwest Bank Minnesota, National Association, as Trustee, hereby certifies to
the above referenced parties that, with respect to each Mortgage Loan listed in
the Mortgage Loan Schedule, except as specifically identified in the schedule of
exceptions annexed hereto, (i) without regard to the proviso in the definition
of "Mortgage File," all documents specified in clauses (i), (ii), (iv)(a), (v)
and (vii), and to the extent provided in the related Mortgage File and actually
known by a Responsible Officer of the Trustee to be required, clauses (iii),
(iv)(b), (iv)(c), (vi), (viii) and (ix) of the definition of "Mortgage File" are
in its possession, (ii) all documents delivered or caused to be delivered by the
applicable Mortgage Loan Seller constituting the related Mortgage File have been
reviewed by it and appear regular on their face and appear to relate to such
Mortgage Loan, and (iii) based on such examination and only as to
C-2-1
the foregoing documents, the information set forth in the Mortgage Loan Schedule
for such Mortgage Loan with respect to the items specified in clauses (v) and
(vi)(c) of the definition of "Mortgage Loan Schedule" is correct.
None of the Trustee, the Master Servicer, the Special Servicer or any Custodian
is under any duty or obligation to inspect, review or examine any of the
documents, instruments, certificates or other papers relating to the Mortgage
Loans delivered to it to determine that the same are valid, legal, effective,
genuine, enforceable, in recordable form, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face. Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them under the Pooling and Servicing Agreement.
Respectfully,
________________________________________
Name:___________________________________
Title:__________________________________
X-0-0
XXXXXXX X-0
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
Norwest Bank Minnesota, National Association
00000 00xx Xxxxxx X.X.
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Inventory Control
Re: Corporate Trust Services (CMBS) - First Union National Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 1999-C4
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by you as
Trustee under a certain Pooling and Servicing Agreement dated as of December 1,
1999 (the "Pooling and Servicing Agreement"), by and among First Union
Commercial Mortgage Securities, Inc., as Depositor, First Union National Bank,
as Master Servicer, ORIX Real Estate Capital Markets, LLC as Special Servicer,
and you, as Trustee, the undersigned hereby requests a release of the Mortgage
File (or the portion thereof specified below) held by you with respect to the
following described Mortgage Loan for the reason indicated below.
Property Name:
Property Address:
Control No.:
The Mortgage File should be delivered to the following:
________________________________________
________________________________________
________________________________________
Attn:___________________________________
Phone:__________________________________
D-1-1
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
_____ 1. Mortgage Loan paid in full.
The Master Servicer hereby certifies that all amounts received in
connection with the Mortgage Loan that are required to be credited
to the Certificate Account pursuant to the Pooling and Servicing
Agreement have been or will be so credited.
_____ 2. Other. (Describe)
____________________________________________________________________
____________________________________________________________________
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten (10) days of our receipt thereof, unless the Mortgage
Loan has been paid in full, in which case the Mortgage File (or such portion
thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
FIRST UNION NATIONAL BANK,
as Master Servicer
By:_____________________________________
Name:________________________________
Title:_______________________________
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
Norwest Bank Minnesota, National Association
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Inventory Control
Re: Corporate Trust Services (CMBS) - First Union National Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 1999-C4
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by you as
Trustee under a certain Pooling and Servicing Agreement dated as of December 1,
1999 (the "Pooling and Servicing Agreement"), by and among First Union
Commercial Mortgage Securities, Inc., as Depositor, First Union National Bank,
as Master Servicer, ORIX Real Estate Capital Markets, LLC, as Special Servicer,
and you, as Trustee, the undersigned hereby requests a release of the Mortgage
File (or the portion thereof specified below) held by you with respect to the
following described Mortgage Loan for the reason indicated below.
Property Name:
Property Address:
Control No.:
The Mortgage File should be delivered to the following:
________________________________________
________________________________________
________________________________________
Attn:___________________________________
Phone:__________________________________
If only particular documents in the Mortgage File are requested, please specify
which:
D-2-1
Reason for requesting file (or portion thereof):
_____ 1. The Mortgage Loan is being foreclosed.
_____ 2. Other. (Describe)
____________________________________________________________________
____________________________________________________________________
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten (10) days of our receipt thereof, unless the Mortgage
Loan is being foreclosed, in which case the Mortgage File (or such portion
thereof) will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
ORIX REAL ESTATE CAPITAL MARKETS, LLC
as Special Servicer
By:_____________________________________
Name:________________________________
Title:_______________________________
D-2-2
EXHIBIT E
CALCULATION OF NOI/DEBT SERVICE COVERAGE RATIOS
"Net Cash Flow" shall mean the revenue derived from the use and operation
of a Mortgaged Property less operating expenses (such as utilities,
administrative expenses, repairs and maintenance, tenant improvement costs,
leasing commissions, management fees and advertising), fixed expenses (such as
insurance, real estate taxes and, if applicable, ground lease payments) and
replacement reserves and an allowance for vacancies and credit losses. Net Cash
Flow does not reflect interest expenses and non-cash items such as depreciation
and amortization, and generally does not reflect capital expenditures, but does
reflect reserves for replacements and an allowance for vacancies and credit
losses.
In determining the "revenue" component of Net Cash Flow for each Rental
Property, the Special Servicer shall rely on the most recent rent roll supplied
by the related borrower and where the actual vacancy shown thereon and the
market vacancy is less than 5%, the Special Servicer shall assume a 5% vacancy
in determining revenue from rents, except that in the case of certain anchored
shopping centers, space occupied by anchor or single tenants or other large
creditworthy tenants shall be disregarded in performing the vacancy adjustment
due to the length of the related leases or creditworthiness of such tenants, in
accordance with the respective Mortgage Loan Seller's underwriting standards.
Where the actual or market vacancy was not less than 5.0%, the Special Servicer
shall determine revenue from rents by generally relying on the most recent roll
supplied and the greater of (a) actual historical vacancy at the related
Mortgaged Property, (b) historical vacancy at comparable properties in the same
market as the related Mortgaged Property, and (c) 5.0%. In determining rental
revenue for multifamily, self-storage and mobile home park properties, the
Special Servicer shall either review rental revenue shown on the certified
rolling 12-month operating statements or annualize the rental revenue and
reimbursement of expenses shown on rent rolls or operating statements with
respect to the prior one to twelve month periods. For the other Rental
Properties, the Special Servicer shall annualize rental revenue shown on the
most recent certified rent roll, after applying the vacancy factor, without
further regard to the terms (including expiration dates) of the leases shown
thereon. In the case of hospitality properties, gross receipts shall be
determined on the basis of adjusted average occupancy not to exceed 80.0% and
daily rates achieved during the prior two to three year annual reporting period.
In the case of residential health care facilities, receipts shall be based on
historical occupancy levels, historical operating revenues and the then current
occupancy rates. Occupancy rates for private health care facilities shall be
within current market ranges and vacancy levels shall be at a minimum of 5%. In
general, any non-recurring items and non-property related revenue shall be
eliminated from the calculation except in the case of residential health care
facilities.
In determining the "expense" component of Net Cash Flow for each Mortgaged
Property, the Special Servicer shall rely on the rolling 12-month operating
statements and/or full-year or year-to-date financial statements supplied by the
related borrower, except that (a) if tax or insurance expense information more
current than that reflected in the financial statements is
E-1
available, the newer information shall be used, (b) with respect to each
Mortgaged Property, property management fees shall be assumed to be 3% to 7% of
effective gross revenue (except with respect to hospitality properties, where a
minimum of 3.5% of gross receipts shall be assumed, and with respect to limited
service hospitality properties, where a minimum of 4.0% of gross receipts shall
be assumed and, with respect to single tenant properties, where fees as low as
1.5% of effective gross receipts shall be assumed), (c) assumptions shall be
made with respect to reserves for leasing commission, tenant improvement
expenses and capital expenditures and (d) expenses shall be assumed to include
annual replacement reserves equal to (1) in the case of retail, office,
industrial and two mixed use multifamily/retail properties, not less than $0.10
and not more than $0.15 per square foot net rentable commercial area, (2) in the
case of multifamily and three mixed use multifamily/retail properties, not less
than $250 per residential unit per year, depending on the condition of the
property, (3) in the case of hospitality properties, not less than 4% and not
more than 5% of the gross revenues received by the property owner on an ongoing
basis, (4) in the case of residential healthcare facilities, $200 to $350 per
bed per year and (5) in the case of the mobile home parks, not less than $50 or
more than $100 per pad per year. In addition, in some instances, the Special
Servicer may recharacterize as capital expenditures those items reported by
borrowers as operating expenses (thus increasing "net cash flow") where
determined appropriate.
E-2
EXHIBIT F
[RESERVED]
F-1
EXHIBIT G-1
FORM OF TRANSFEROR CERTIFICATE
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette-MAC#N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services (CMBS) - First Union National Bank,
Series 1999-C4
Re: First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series 1999-C4 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
principal balance as of December 17, 1999 (the "Closing Date") of $_____________
evidencing a __% percentage interest in the Class to which it belongs. The
Certificates were issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of December 1, 1999, among First
Union Commercial Mortgage Securities, Inc., as depositor, First Union National
Bank, as master servicer, ORIX Real Estate Capital Markets, LLC, as special
servicer and Norwest Bank Minnesota, National Association, as trustee. All terms
used herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificate
with the full right to transfer such Certificate free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accepted a
transfer, pledge or other disposition of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) made any general solicitation by means
of general advertising or in any other manner, or (e) taken any other
action, which (in the case of any of the acts described in clauses (a)
through (e)
G-1-1
hereof) would constitute a distribution of any Certificate under the
Securities Act of 1933, as amended (the "Securities Act"), or would render
the disposition of any Certificate a violation of Section 5 of the
Securities Act or any state securities laws, or would require registration
or qualification of any Certificate pursuant to the Securities Act or any
state securities laws.
Very truly yours,
________________________________________
(Transferor)
By:_____________________________________
Name:___________________________________
Title:__________________________________
G-1-2
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE
FOR QIBs
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette-MAC#N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services (CMBS) - First Union National Bank
Series 1999-C4
Re: First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series 1999-C4 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
principal balance as of December 17, 1999 (the "Closing Date") of $_____________
evidencing a __% percentage interest in the Class to which it belongs. The
Certificates were issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of December 1, 1999, among First
Union Commercial Mortgage Securities, Inc., as depositor, First Union National
Bank, as master servicer, ORIX Real Estate Capital Markets, LLC, as special
servicer and Norwest Bank Minnesota, National Association, as trustee. All terms
used herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended (the "Securities Act") and has completed one of the forms of
certification to that effect attached hereto as Annex 1 and Annex 2. The
Transferee is aware that the sale to it is being made in reliance on Rule
144A. The Transferee is acquiring the Transferred Certificate for its own
account or for the account of a qualified institutional buyer, and
understands that such Certificate may be resold, pledged or transferred
only (i) to a person reasonably believed to be a qualified institutional
buyer that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
G-2-1
2. In the case of a Class A Certificate or Class IO Certificate, the
Transferee is either (A) not an "employee benefit plan" subject to ERISA
or a "plan" described by Section 4975(e)(1) of the Code, or any entity
deemed to hold plan assets of the foregoing by reason of a plan's
investment in such entity (each, a "Plan") or (B) qualifies as an
accredited investor as defined in Rule 501(a)(1) of Regulation D under the
Securities Act and either (1) at the time of such transfer, the
Certificates are rated in one of the top three rating categories by at
least one Rating Agency, or (2) the purchaser is an insurance company
general account that is eligible for, and satisfies all of the
requirements of, Section III of Prohibited Transaction Class Exemption
95-60.
In the case of a Subordinated Certificate, the Transferee is either
(A) not an "employee benefit plan" subject to ERISA or a "plan" described
by Section 4975(e)(1) of the Code, or any entity deemed to hold plan
assets of the foregoing by reason of a plan's investment in such entity
(each, a "Plan") or (B) is an insurance company general account which is
eligible for, and satisfies all of the requirements for, exemptive relief
under Section III of Department of Labor Prohibited Transaction Class
Exemption 95-60 ("PTE 95-60").
3. The Transferee has been furnished with all information regarding
(a) the Certificates and distributions thereon, (b) the nature,
performance and servicing of the Mortgage Loans, (c) the Pooling and
Servicing Agreement, and (d) any credit enhancement mechanism associated
with the Certificates, that it has requested.
4. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate except
in compliance with the provisions of Section 5.02 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed, and that
the Transferred Certificate will bear legends substantially to the
following effect:
[In the case of the Unregistered Certificates]: THE CERTIFICATE HAS NOT
BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE
WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
-AND-
[In the case of Class A and Class IO Certificates]: NO TRANSFER OF THIS
CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY "EMPLOYEE BENEFIT
PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION 4975(E)(1) OF THE
CODE, OR ANY ENTITY DEEMED TO HOLD PLAN
G-2-2
ASSETS OF THE FOREGOING BY REASON OF A PLAN'S INVESTMENT IN SUCH ENTITY
(EACH, A "PLAN") UNLESS SUCH PLAN QUALIFIES AS AN ACCREDITED INVESTOR AS
DEFINED IN RULE 501(A)(1) OF REGULATION D UNDER THE SECURITIES ACT AND
EITHER (1) AT THE TIME OF SUCH TRANSFER, THE CERTIFICATES ARE RATED IN ONE
OF THE TOP THREE RATING CATEGORIES BY AT LEAST ONE RATING AGENCY, OR (2)
THE PURCHASER IS AN INSURANCE COMPANY GENERAL ACCOUNT THAT IS ELIGIBLE
FOR, AND SATISFIES ALL OF THE REQUIREMENTS OF, SECTION III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING
CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE
IN VIOLATION OF THE FOREGOING.
[In the case of Subordinated Certificates]: NO TRANSFER OF THIS
CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY "EMPLOYEE BENEFIT
PLAN" SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION 4975(E)(1) OF THE
CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON
OF A PLAN'S INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN
INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL
OF THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTION III OF DEPARTMENT
OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"). EACH
PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED
THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER
THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
5. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accept a
pledge, disposition or other transfer of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) made any general solicitation by means
of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a)
through (e) above) would constitute a distribution of any Certificate
under the Securities Act, would render the disposition of any Certificate
a violation of Section 5 of the Securities Act or any state securities law
or would require registration or qualification of any Certificate pursuant
thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to any Certificate.
Very truly yours,
G-2-3
________________________________________
(Transferee)
By:_____________________________________
Name:________________________________
Title:_______________________________
G-2-4
ANNEX 1 TO EXHIBIT G-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and Norwest Bank Minnesota, National Association, as Certificate
Registrar, with respect to the mortgage pass-through certificate being
transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A")
because (i) the Transferee owned and/or invested on a discretionary basis $ / in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) [Transferee must own and/or invest on a discretionary
basis at least $100,000,000 in securities unless Transferee is a dealer, and, in
that case, Transferee must own and/or invest on, a discretionary basis at least
$10,000,000 in securities.] and (ii) the Transferee satisfies the criteria in
the category marked below.
____ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution), business
trust, partnership, or any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
____ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Certificate in
the case of a U.S. bank, and not more than 18 months preceding such
date of sale for a foreign bank or equivalent institution.
____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision over
any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest annual
financial statements, a copy of which is attached hereto, as of a
date not more than 16 months preceding the date of sale of the
Certificate in the case of a U.S. savings and loan association, and
not more than 18 months preceding such date of sale for a foreign
savings and loan association or equivalent institution.
____ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
____ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
____ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
____ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
____ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)
3. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee, (ii) securities that are part
of an unsold allotment to or subscription by the Transferee, if the Transferee
is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject to
a repurchase agreement and (vii) currency, interest rate and commodity swaps.
For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee did not
include any of the securities referred to in this paragraph.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Transferee, the Transferee used
the cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those
securities has been published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee's direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the Transferee
is not itself a reporting company under the Securities Exchange Act of 1934.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the parties to which this certification is being made are
relying and will continue to rely on the statements made herein because one or
more sales to the Transferee may be in reliance on Rule 144A.
________ ________ Will the Transferee be purchasing the
Yes No Transferred Certificate only for the
Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
Print Name of Transferee
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Date:_______________________________________
ANNEX 2 TO EXHIBIT G-2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and Norwest Bank Minnesota, National Association, as Certificate
Registrar, with respect to the mortgage pass-through certificate being
transferred (the "Transferred Certificate") as described in the Transferee
Certificate to which this certification relates and to which this certification
is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933 ("Rule 144A") because the Transferee is
part of a Family of Investment Companies (as defined below), is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule
144A because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis $_____
in securities (other than the excluded securities referred to below)
as of the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the same
investment adviser or
investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will continue
to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
Will the Transferee be purchasing the
________ ________ Transferred Certificate only for the
Yes No Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional buyer"
status of such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificate will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
Print Name of Transferee or Adviser
By:_________________________________________
Name:_______________________________________
Title:______________________________________
EXHIBIT G-3
FORM OF TRANSFEREE CERTIFICATE
FOR NON-QIBs
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette-MAC#N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services (CMBS) - First Union National Bank Commercial
Mortgage Trust, Series 1999-C4
Re: First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series 1999-C4 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an initial
principal balance as of December 17, 1999 (the "Closing Date") of $_____________
evidencing a __% percentage interest in the Class to which it belongs. The
Certificates were issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of December 1, 1999, among First
Union Commercial Mortgage Securities, Inc., as depositor (the "Depositor"),
First Union National Bank, as master servicer, ORIX Real Estate Capital Markets,
LLC, as special servicer and Norwest Bank Minnesota, National Association, as
trustee. All terms used herein and not otherwise defined shall have the meanings
set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificate for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not been and
will not be registered under the Securities Act or registered or qualified under
any applicable state securities
G-3-1
laws, (b) neither the Depositor nor the Trustee or the Certificate Registrar is
obligated so to register or qualify the Certificates and (c) the Certificates
may not be resold or transferred unless they are (i) registered pursuant to the
Securities Act and registered or qualified pursuant to any applicable state
securities laws or (ii) sold or transferred in transactions which are exempt
from such registration and qualification and the Certificate Registrar has
received either (A) certifications from both the transferor and the transferee
(substantially in the forms attached to the Pooling and Servicing Agreement)
setting forth the facts surrounding the transfer or (B) an opinion of counsel
satisfactory to the Certificate Registrar with respect to the availability of
such exemption (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee
or the Certificate Registrar in their respective capacities as such), together
with copies of the certification(s) from the Transferor and/or Transferee
setting forth the facts surrounding the transfer upon which such opinion is
based. Any holder of a Certificate desiring to effect such a transfer shall, and
upon acquisition of such Certificate shall be deemed to have agreed to,
indemnify the Trustee, the Certificate Registrar and the Depositor against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
3. The Transferee understands that it may not sell or otherwise transfer
any portion of its interest in the Transferred Certificate except in compliance
with the provisions of Section 5.02 of the Pooling and Servicing Agreement,
which provisions it has carefully reviewed, and that the Transferred Certificate
will bear legends substantially to the following effect:
[In the case of Unregistered Certificates]: THE CERTIFICATE HAS NOT BEEN
AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
-AND-
[In the case of Class A and Class IO Certificates]: NO TRANSFER OF THIS
CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY "EMPLOYEE BENEFIT PLAN"
SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION 4975(E)(1) OF THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS SUCH PLAN QUALIFIES AS AN
ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1) OF REGULATION D UNDER THE
SECURITIES ACT AND EITHER (1) AT THE TIME OF SUCH TRANSFER, THE CERTIFICATES ARE
RATED IN ONE OF THE TOP THREE RATING CATEGORIES BY AT LEAST ONE RATING AGENCY,
OR (2) THE PURCHASER IS AN INSURANCE COMPANY GENERAL ACCOUNT THAT IS ELIGIBLE
FOR, AND SATISFIES ALL OF THE REQUIREMENTS OF, SECTION III OF PROHIBITED
TRANSACTION CLASS
G-3-2
EXEMPTION 95-60. EACH PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO
HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT
TRANSFER THIS CERTIFICATE IN VIOLATION OF THE FOREGOING.
[In the case of Subordinated Certificates]: NO TRANSFER OF THIS
CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY "EMPLOYEE BENEFIT PLAN"
SUBJECT TO ERISA OR A "PLAN" DESCRIBED BY SECTION 4975(E)(1) OF THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN'S
INVESTMENT IN SUCH ENTITY (EACH, A "PLAN") UNLESS IT IS AN INSURANCE COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTION III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"). EACH PERSON WHO ACQUIRES THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE
SATISFIED, AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE
FOREGOING.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) solicited any offer to buy or accept a pledge, disposition or other
transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of any
Certificate under the Securities Act, would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of any Certificate
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to any Certificate.
5. The Transferee has been furnished with all information regarding (a)
the Depositor, (b) the Certificates and distributions thereon, (c) the Pooling
and Servicing Agreement, and (d) all related matters, that it has requested.
G-3-3
6. The Transferee is an "accredited investor" as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act and has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of an investment in the Certificates; the Transferee has sought
such accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Transferee is able to bear the economic
risks of such an investment and can afford a complete loss of such investment.
Very truly yours,
________________________________________
(Transferee)
By:_____________________________________
Name:___________________________________
Title:__________________________________
G-3-4
EXHIBIT H
FORM OF TRANSFEREE CERTIFICATE
[Date]
Norwest Bank Minnesota, National Association
Norwest Center Sixth and Marquette-MAC#N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services (CMBS) - First Union National Bank Commercial
Mortgage Trust, Series 1999-C4
Re: First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series 1999-C4 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of the Class ______________ Certificates (the "Transferred
Certificate") having an initial principal balance as of December 17, 1999 (the
"Closing Date") of $_____________ evidencing a __% interest in the Classes to
which they belong. The Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as of December 1, 1999 (the "Pooling and Servicing
Agreement"), among First Union Commercial Mortgage Securities, Inc., as
depositor, First Union National Bank, as master servicer, ORIX Real Estate
Capital Markets, LLC, as special servicer and Norwest Bank Minnesota, National
Association, as trustee (the "Trustee"). Capitalized terms used but not defined
herein shall have the meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you that:
In the case of a Class A Certificate or a Class IO Certificate, the
Transferee is either (A) not an "employee benefit plan" subject to ERISA or a
"plan" described by Section 4975(e)(1) of the Code, or any entity deemed to hold
plan assets of the foregoing by reason of a plan's investment in such entity
(each, a "Plan") or (B) qualifies as an accredited investor as defined in Rule
501(a)(1) of Regulation D under the Securities Act and either (1) at the time of
such transfer, the Certificates are rated in one of the top three rating
categories by at least one Rating Agency, or (2) the purchaser is an insurance
company general account that is eligible for, and satisfies all of the
requirements of, Section III of Prohibited Transaction Class Exemption 95-60.
In the case of a Subordinated Certificate, the Transferee is either (A)
not an "employee benefit plan" subject to ERISA or a "plan" described by Section
4975(e)(1) of the Code, or any entity deemed to hold plan assets of the
foregoing by reason of a plan's investment in such entity
H-1
(each, a "Plan") or (B) is an insurance company general account which is
eligible for, and satisfies all of the requirements for, exemptive relief under
Section III of Department of Labor Prohibited Transaction Class Exemption 95-60
("PTE 95-60").
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
the date first written above.
________________________________________
(Transferee)
By:_____________________________________
Name:___________________________________
Title:__________________________________
H-2
EXHIBIT I-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(d)(i)(B)
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
[NAME OF OFFICER], being first duly sworn, deposes, and represents
and warrants:
1. That he is a [Title of Officer] of [Name of Owner] (the "Owner"),
a corporation duly organized and existing under the laws of the [State of
___________] [the United States], and the owner of the First Union
Commercial Mortgage Securities, Inc., Commercial Mortgage Pass-Through
Certificates, Series 1999-C4, Class [R-I, R-II, R-III] evidencing a ___%
Percentage Interest in the Class to which its belongs (the "Class [R-I,
R-II, R-III] Certificates"). Capitalized terms used but not defined herein
have the meanings assigned to such terms in the Pooling and Servicing
Agreement dated as of December 1, 1999, among First Union Commercial
Mortgage Securities, Inc., as Depositor, First Union National Bank as
Master Servicer, ORIX Real Estate Capital Markets, LLC, as Special
Servicer and Norwest Bank Minnesota, National Association.
2. That the Owner (i) is and will be a "Permitted Transferee" as of
________, _______ and (ii) is acquiring the Class [R-I, R-II, R-III]
Certificates for its own account or for the account of another Owner from
which it has received an affidavit in substantially the same form as this
affidavit. A "Permitted Transferee" is any person other than a
"disqualified organization" or a Non-United States Person. For this
purpose, a "disqualified organization" means any of the following: (i) the
United States, any State or political subdivision thereof, any possession
of the United States, or any agency or instrumentality of any of the
foregoing (other than an instrumentality which is a corporation if all of
its activities are subject to tax and, except of the FHLMC, a majority of
its board of directors is not selected by such governmental unit), (ii) a
foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (iii) any organization (other
than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (unless such
organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code and (v) any
other Person so designated by the Trustee based upon an Opinion of Counsel
that the holding of an Ownership Interest in a Class [R-I, R-II, R-III]
Certificate by such Person may cause the Trust Fund or any Person having
an Ownership Interest in any Class of Certificates, other than such
Person, to incur a liability for any federal tax imposed under the Code
that would not otherwise
I-1-1
be imposed but for the Transfer of an Ownership Interest in a Class [R-I,
R-II, R-III] Certificate to such Person. The terms "United States",
"State" and "international organization" shall have the meanings set forth
in Section 7701 of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United
States, a corporation or partnership (including an entity treated as a
corporation or partnership for federal income tax purposes) created or
organized in, or under the laws of the United States, any State thereof or
the District of Columbia unless in the case of a partnership, Treasury
Regulations are adopted that provide otherwise, or an estate whose income
is includable in gross income for federal tax income purposes regardless
of its source, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one
or more United States Persons have the authority to control all
substantial decisions of the trust, all within the meaning of Section
7701(a)(30) of the Code.
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of the Class [R-I, R-II, R-III] Certificates to disqualified
organizations under the Code that applies to all transfers of the Class
[R-I, R-II, R-III] Certificates after March 31, 1988; (ii) that such tax
would be on the transferor, or, if such transfer is through an agent
(which person includes a broker, nominee or middleman) for a disqualified
organization Transferee, on the agent; (iii) that the person otherwise
liable for the tax shall be relieved of liability for the tax if the
transferee furnishes to such person an affidavit that the transferee is
not a disqualified organization and, at the time of transfer, such person
does not have actual knowledge that the affidavit is false; and (iv) that
the Class [R-I, R-II, R-III] Certificates may be "noneconomic residual
interests" within the meaning of Treasury regulation section
1.860E-1(c)(2) and that the transferor of a "noneconomic residual
interest" will remain liable for any taxes due with respect to the income
on such residual interest, unless no significant purpose of the transfer
is to enable the transferor to impede the assessment or collection of tax.
4. That the Owner is aware of the tax imposed on a "pass-through
entity" holding the Class [R-I, R-II, R-III] Certificates if at any time
during the taxable year of the pass-through entity a non-Permitted
Transferee is the record holder of an interest in such entity. For this
purpose, a "pass through entity" includes a regulated investment company,
a real estate investment trust or common trust fund, a partnership, trust
or estate, and certain cooperatives.
5. That the Owner is aware that the Certificate Registrar will not
register the transfer of any Class [R-I, R-II, R-III] Certificate unless
the transferee, or the transferee's agent, delivers to the Trustee, among
other things, an affidavit in substantially the same form as this
affidavit. The Owner expressly agrees that it will not consummate any such
I-1-2
transfer if it knows or believes that any of the representations contained
in such affidavit and agreement are false.
6. That the Owner consents to any additional restrictions or
arrangements that shall be deemed necessary upon advice of counsel to
constitute a reasonable arrangement to ensure that the Class [R-I, R-II,
R-III] Certificates will only be owned, directly or indirectly, by
Permitted Transferees.
7. That the Owner's taxpayer identification number is _____________.
8. That the Owner has reviewed the restrictions set forth on the
face of the Class [R-I, R-II, R-III] Certificates and the provisions of
Section 5.02 of the Pooling and Servicing Agreement under which the Class
[R-I, R-II, R-III] Certificates were issued (and, in particular, the Owner
is aware that such Section authorizes the Trustee to deliver payments to a
person other than the Owner and negotiate a mandatory sale by the Trustee
in the event that the Owner holds such Certificate in violation of Section
5.02); and that the Owner expressly agrees to be bound by and to comply
with such restrictions and provisions.
9. That the Owner is not acquiring and will not transfer the Class
[R-I, R-II, R-III] Certificates in order to impede the assessment or
collection of any tax.
10. That the Owner anticipates that it will, so long as it holds any
of the Class [R-I, R-II, R-III] Certificates, have sufficient assets to
pay any taxes owed by the holder of such Class [R-I, R-II, R-III]
Certificates.
11. That the Owner has no present knowledge that it may become
insolvent or subject to a bankruptcy proceeding for so long as it holds
any of the Class [R-I, R-II, R-III] Certificates.
12. That the Owner has no present knowledge or expectation that it
will be unable to pay any United States taxes owed by it so long as any of
the Certificates remain outstanding. In this regard, the Owner hereby
represents to and for the benefit of the Person from whom it acquired the
Class [R-I, R-II, R-III] Certificates that the Owner intends to pay taxes
associated with holding the Class [R-I, R-II, R-III] Certificates as they
become due, fully understanding that it may incur tax liabilities in
excess of any cash flows generated by the Class [R-I, R-II, R-III]
Certificates.
13. That the Owner is not acquiring the Class [R-I, R-II, R-III]
Certificates with the intent to transfer any of the Class [R-I, R-II,
R-III] Certificates to any person or entity that will not have sufficient
assets to pay any taxes owed by the holder of such Class [R-I, R-II,
R-III] Certificates, or that may become insolvent or subject to a
I-1-3
bankruptcy proceeding, for so long as the Class [R-I, R-II, R-III]
Certificates remain outstanding.
14. That Owner will, in connection with any transfer that it makes
of the Class [R-I, R-II, R-III] Certificates, obtain from its transferee
the representations required by Section 5.02(d) of the Pooling and
Servicing Agreement under which the Class [R-I, R-II, R-III] Certificates
were issued and will not consummate any such transfer if it knows, or
knows facts that should lead it to believe, that any such representations
are false.
15. That Owner will, in connection with any transfer that it makes
of any Class [R-I, R-II, R-III] Certificate, deliver to the Certificate
Registrar an affidavit, which represents and warrants that it is not
transferring such Class [R-I, R-II, R-III] Certificate to impede the
assessment or collection of any tax and that it has no actual knowledge
that the proposed transferee: (i) has insufficient assets to pay any taxes
owed by such transferee as holder of such Class [R-I, R-II, R-III]
Certificate; (ii) may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class [R-I, R-II, R-III] Certificates
remain outstanding; and (iii) is not a "Permitted Transferee".
I-1-4
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed on
its behalf, by its [Title of Officer] and Authorized Signatory, attested by its
Assistant Secretary, this ____ day of _____, ___.
[NAME OF OWNER]
By:_____________________________________
[Name of Officer]
[Title of Officer]
___________________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known or
proved to me to be the same person who executed the foregoing instrument and to
be [Title of Officer], and acknowledged to me that he executed the same as his
free act and deed and the free act and deed of the Owner.
Subscribed and sworn before me this ____ day of _____, _____.
________________________________________
NOTARY PUBLIC
COUNTY OF_______________________________
STATE OF________________________________
My Commission expires the ____ day of
___________, ____.
I-1-5
EXHIBIT I-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(d)(i)(D)
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette-MAC#N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services (CMBS) - First Union National Bank Commercial
Mortgage Trust, Series 1999-C4
Re: First Union National Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series 1999-C4, Class [R-I, R-II, R-III], evidencing a ____%
percentage interest in the Class to which they belong
Dear Sirs:
This letter is delivered to you in connection with the transfer by (the
"Transferor") to ______________________ (the "Transferee") of the captioned
Class [R-I, R-II, R-III] Certificates (the "Class [R-I, R-II, R-III]
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of December 1, 1999, among
First Union Commercial Mortgage Securities, Inc., as depositor, First Union
National Bank, as master servicer, ORIX Real Estate Capital Markets, LLC, as
special servicer, Norwest Bank Minnesota, National Association, as trustee. All
terms used herein and not otherwise defined shall have the meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby represents and
warrants to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the
Class [R-I, R-II, R-III] Certificates by the Transferor to the Transferee
is or will be to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to
you a Transfer Affidavit and Agreement in the form attached to the Pooling
and Servicing Agreement as Exhibit I-1. The Transferor does not know or
believe that any representation contained therein is false.
I-2-1
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee as
contemplated by Treasury regulation section 1.860E-1(c)(4)(i) and, as a
result of that investigation, the Transferor has determined that the
Transferee has historically paid its debts as they became due and has
found no significant evidence to indicate that the Transferee will not
continue to pay its debts as they become due in the future. The Transferor
understands that the transfer of the Class [R-I, R-II, R-III] Certificates
may not be respected for United States income tax purposes (and the
Transferor may continue to be liable for United States income taxes
associated therewith) unless the Transferor has conducted such an
investigation.
Very truly yours,
By:_____________________________________
Name:___________________________________
Title:__________________________________
X-0-0
XXXXXXX X-0
FORM OF NOTICE AND ACKNOWLEDGMENT
[Date]
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Duff & Xxxxxx Credit Rating Co.
00 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the Pooling and
Servicing Agreement dated as of December 1, 1999 relating to First Union
National Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 1999-C4 (the "Agreement"). Any term with initial capital
letters not otherwise defined in this notice has the meaning given such term in
the Agreement.
Notice is hereby given that the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class have designated
___________________ to serve as the Special Servicer under the Agreement.
The designation of ____________________ as Special Servicer will become
final if certain conditions are met and on the date you will deliver to Norwest
Bank Minnesota, National Association, the trustee under the Agreement (the
"Trustee"), a written confirmation stating that the appointment of the person
designated to become the Special Servicer will not result in the qualification,
downgrading or withdrawal of the rating or ratings assigned to one or more
Classes of the Certificates.
J-1-1
Please acknowledge receipt of this notice by signing the enclosed copy of
this notice where indicated below and returning it to the Trustee, in the
enclosed stamped self-addressed envelope.
Very truly yours,
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
By:_____________________________________
Title:__________________________________
Receipt acknowledged:
Standard & Poor's Ratings Services Duff & Xxxxxx Credit Rating Co.
By:________________________________ By:_____________________________________
Title:_____________________________ Title:__________________________________
Date:______________________________ By:_____________________________________
X-0-0
XXXXXXX X-0
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
Norwest Bank Minnesota, National Association
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attn: First Union National Bank, Series 1999-C4
Ladies & Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement dated as
of December 1, 1999 relating to First Union National Bank Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 1999-C4 (the
"Agreement"), the undersigned hereby agrees with all the other parties to the
Agreement that the undersigned shall serve as Special Servicer under, and as
defined in, the Agreement. The undersigned hereby acknowledges that, as of the
date hereof, it is and shall be a party to the Agreement and bound thereby to
the full extent indicated therein in the capacity of Special Servicer. The
undersigned hereby makes, as of the date hereof, the representations and
warranties set forth in Section 3.23(b) of the Agreement as if it were the
Special Servicer thereunder.
________________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
J-2-1
EXHIBIT K
[RESERVED]
K-1
EXHIBIT L
[RESERVED]
L-1
EXHIBIT M
FORM OF CMSA PROPERTY FILE REPORT
M-1
Commercial Mortgage Securities Association
CMSA "Property"File
(Data Record Layout)
Cross Referenced as "P"
==================================================================================================
Format
Field Name Number Example
==================================================================================================
Current Allocated Percentage 20 Numeric 0.75
--------------------------------------------------------------------------------------------------
Current Allocated Ending Scheduled Loan 21 Numeric 5900900.00
Amount
--------------------------------------------------------------------------------------------------
Ground Lease (Y/S/N) 22 AN N
--------------------------------------------------------------------------------------------------
Total Reserve Balance 23 Numeric 25000.00
--------------------------------------------------------------------------------------------------
Most Recent Appraisal Date 24 AN YYYYMMDD
--------------------------------------------------------------------------------------------------
Most Recent Appraisal Value 25 Numeric 1000000.00
--------------------------------------------------------------------------------------------------
Date Asset Expected to Be Resolved or 26 AN YYYYMMDD
Foreclosed
--------------------------------------------------------------------------------------------------
Foreclosure Date 27 AN YYYYMMDD
--------------------------------------------------------------------------------------------------
REO Date 28 AN YYYYMMDD
--------------------------------------------------------------------------------------------------
Most Recent Physical Occupancy 29 Numeric 0.75
--------------------------------------------------------------------------------------------------
Occupancy As of Date 30 AN YYYYMMDD
--------------------------------------------------------------------------------------------------
Date Lease Rollover Review 31 AN YYYYMMDD
--------------------------------------------------------------------------------------------------
% Sq. Feet expiring 1-12 months 32 Numeric 0.2
--------------------------------------------------------------------------------------------------
% Sq. Feet expiring 13-24 months 33 Numeric 0.2
--------------------------------------------------------------------------------------------------
% Sq. Feet expiring 25-36 months 34 Numeric 0.2
--------------------------------------------------------------------------------------------------
% Sq. Feet expiring 37-48 months 35 Numeric 0.2
--------------------------------------------------------------------------------------------------
% Sq. Feet expiring 49-60 months 36 Numeric 0.2
--------------------------------------------------------------------------------------------------
Largest Tenant 37 AN Text
--------------------------------------------------------------------------------------------------
Square Feet of Largest Tenant 38 Numeric 15000
--------------------------------------------------------------------------------------------------
2nd Largest Tenant 39 AN Text
--------------------------------------------------------------------------------------------------
Square Feet of 2nd Largest Tenant 40 Numeric 15000
--------------------------------------------------------------------------------------------------
3rd Largest Tenant 41 AN Text
--------------------------------------------------------------------------------------------------
Square Feet of 3rd Largest Tenant 42 Numeric 15000
--------------------------------------------------------------------------------------------------
Fiscal Year End Month 43 Numeric MM
--------------------------------------------------------------------------------------------------
Contribution Financials As Of Date 44 AN YYYYMMDD
--------------------------------------------------------------------------------------------------
Revenue At Contribution 45 Numeric 1000000.00
--------------------------------------------------------------------------------------------------
Operating Expenses At Contribution 46 Numeric 1000000.00
--------------------------------------------------------------------------------------------------
NOI At Contribution 47 Numeric 1000000.00
==================================================================================================
====================================================================================================================================
Field Name Description/Comments
====================================================================================================================================
Current Allocated Percentage Maintained by servicer. If not supplied in by Issuer or Underwriter, use
Underwriting NOI or NCF to calculate
------------------------------------------------------------------------------------------------------------------------------------
Current Allocated Ending Scheduled Loan Calculation basaead on Current Allocated Percentage and Current Ending
Amount Scheduled Principal Balance (L7) for associated loan.
------------------------------------------------------------------------------------------------------------------------------------
Ground Lease (Y/S/N) Either Y=Yes, S=Subordinate, N=No ground lease
------------------------------------------------------------------------------------------------------------------------------------
Total Reserve Balance For Maintenance, Repairs, & Environmental. (Excludes Tax & Insurance Escrows). An
amount should be printed if the value in Setup File field 77 is "Y"
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Appraisal Date
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Appraisal Value
------------------------------------------------------------------------------------------------------------------------------------
Date Asset Expected to Be Resolved or Could be different dates for different properties. If in Foreclosure-Expected
Foreclosed Date of Foreclosure and if REO - Expected Sale Date.
------------------------------------------------------------------------------------------------------------------------------------
Foreclosure Date
------------------------------------------------------------------------------------------------------------------------------------
REO Date
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Physical Occupancy
------------------------------------------------------------------------------------------------------------------------------------
Occupancy As of Date Typically should be the effective xxxx of the Rent Roll
------------------------------------------------------------------------------------------------------------------------------------
Date Lease Rollover Review Rollover review to be completed every 12 months
------------------------------------------------------------------------------------------------------------------------------------
% Sq. Feet expiring 1-12 months Apply to Property Types - RT, IN, WH, OF, MU, OT
------------------------------------------------------------------------------------------------------------------------------------
% Sq. Feet expiring 13-24 months Apply to Property Types - RT, IN, WH, OF, MU, OT
------------------------------------------------------------------------------------------------------------------------------------
% Sq. Feet expiring 25-36 months Apply to Property Types - RT, IN, WH, OF, MU, OT
------------------------------------------------------------------------------------------------------------------------------------
% Sq. Feet expiring 37-48 months Apply to Property Types - RT, IN, WH, OF, MU, OT
------------------------------------------------------------------------------------------------------------------------------------
% Sq. Feet expiring 49-60 months Apply to Property Types - RT, IN, WH, OF, MU, OT
------------------------------------------------------------------------------------------------------------------------------------
Largest Tenant For Office, WH, Retail, Industrial, Other or Mixed Use, as applicable
------------------------------------------------------------------------------------------------------------------------------------
Square Feet of Largest Tenant
------------------------------------------------------------------------------------------------------------------------------------
2nd Largest Tenant For Office, WH, Retail, Industrial, Other or Mixed Use, as applicable
------------------------------------------------------------------------------------------------------------------------------------
Square Feet of 2nd Largest Tenant
------------------------------------------------------------------------------------------------------------------------------------
3rd Largest Tenant For Office, WH, Retail, Industrial, Other or Mixed Use, as applicable
------------------------------------------------------------------------------------------------------------------------------------
Square Feet of 3rd Largest Tenant
------------------------------------------------------------------------------------------------------------------------------------
Fiscal Year End Month Needed to indicate month ending for borrower's Fiscal Year. For example:"12"
------------------------------------------------------------------------------------------------------------------------------------
Contribution Financials As Of Date
------------------------------------------------------------------------------------------------------------------------------------
Revenue At Contribution Should match the prospectus if available. At the Property Level
------------------------------------------------------------------------------------------------------------------------------------
Operating Expenses At Contribution Should match the prospectus if available. At the Property Level
------------------------------------------------------------------------------------------------------------------------------------
NOI At Contribution Should match the prospectus if available. At the Property Level
====================================================================================================================================
=================================================================
Loan Field
Field Name Reference
=================================================================
Current Allocated Percentage
-----------------------------------------------------------------
Current Allocated Ending Scheduled Loan
Amount L7
-----------------------------------------------------------------
Ground Lease (Y/S/N) S74
-----------------------------------------------------------------
Total Reserve Balance S77
-----------------------------------------------------------------
Most Recent Appraisal Date L74
-----------------------------------------------------------------
Most Recent Appraisal Value L75
-----------------------------------------------------------------
Date Asset Expected to Be Resolved or L79
Foreclosed
-----------------------------------------------------------------
Foreclosure Date L42
-----------------------------------------------------------------
REO Date L43
-----------------------------------------------------------------
Most Recent Physical Occupancy L71
-----------------------------------------------------------------
Occupancy As of Date
-----------------------------------------------------------------
Date Lease Rollover Review
-----------------------------------------------------------------
% Sq. Feet expiring 1-12 months S62
-----------------------------------------------------------------
% Sq. Feet expiring 13-24 months S62
-----------------------------------------------------------------
% Sq. Feet expiring 25-36 months S62
-----------------------------------------------------------------
% Sq. Feet expiring 37-48 months S62
-----------------------------------------------------------------
% Sq. Feet expiring 49-60 months S62
-----------------------------------------------------------------
Largest Tenant
-----------------------------------------------------------------
Square Feet of Largest Tenant
-----------------------------------------------------------------
2nd Largest Tenant
-----------------------------------------------------------------
Square Feet of 2nd Largest Tenant
-----------------------------------------------------------------
3rd Largest Tenant
-----------------------------------------------------------------
Square Feet of 3rd Largest Tenant
-----------------------------------------------------------------
Fiscal Year End Month
-----------------------------------------------------------------
Contribution Financials As Of Date S72
-----------------------------------------------------------------
Revenue At Contribution S70
-----------------------------------------------------------------
Operating Expenses At Contribution S71
-----------------------------------------------------------------
NOI At Contribution S65
=================================================================
Commercial Mortgage Securities Association
CMSA "Property"File
(Data Record Layout)
==========================================================================================
Format
Field Name Number Example
==========================================================================================
==========================================================================================
DSCR (NOI) At Contribution 48 Numeric 1.5
------------------------------------------------------------------------------------------
Appraisal Value At Contribution 49 Numeric 1000000.00
------------------------------------------------------------------------------------------
50 YYYYMMDD
------------------------------------------------------------------------------------------
Physical Occupancy At Contribution 51 Numeric 0.9
------------------------------------------------------------------------------------------
52 YYYYMMDD
------------------------------------------------------------------------------------------
Preceding Fiscal Year Financial As of Date 53 AN YYYYMMDD
------------------------------------------------------------------------------------------
Preceding Fiscal Year Revenue 54 Numeric 1000000.00
------------------------------------------------------------------------------------------
Preceding Fiscal Year Operating Expenses 55 Numeric 1000000.00
------------------------------------------------------------------------------------------
Prededing Fiscal Year NOI 56 Numeric 1000000.00
------------------------------------------------------------------------------------------
Preceding Fiscal Yr Debt Service Amount 57 Numeric 1000000.00
------------------------------------------------------------------------------------------
Preceding Fiscal Year DSCR (NOI) 58 Numeric 1.30
------------------------------------------------------------------------------------------
Preceding Fiscal Year Physical Occupancy 59 Numeric 0.90
------------------------------------------------------------------------------------------
Second Preceding FY Financial As of Date 60 AN YYYYMMDD
------------------------------------------------------------------------------------------
Second Preceding Fiscal Year Revenue 61 Numeric 1000000.00
------------------------------------------------------------------------------------------
Second Preceding FY Operating Expenses 62 Numeric 1000000.00
------------------------------------------------------------------------------------------
Second Preceding Fiscal Year NOI 63 Numeric 1000000.00
------------------------------------------------------------------------------------------
Second PrecedingFY Debt Service Amount 64 Numeric 1000000.00
------------------------------------------------------------------------------------------
Second Preceding Fiscal Year DSCR (NOI) 65 Numeric 1.3
------------------------------------------------------------------------------------------
Second Preceding FY Physical Occupancy 66 Numeric 0.9
------------------------------------------------------------------------------------------
Property Contribution Date 67 AN YYYYMMDD
------------------------------------------------------------------------------------------
Most Recent Revenue 68 Numeric 1000000.00
------------------------------------------------------------------------------------------
Most Recent Operating Expenses 69 Numeric 1000000.00
------------------------------------------------------------------------------------------
Most Recent NOI 70 Numeric 1000000.00
------------------------------------------------------------------------------------------
Most Recent Debt Service Amount 71 Numeric 1000000.00
------------------------------------------------------------------------------------------
Most Recent DSCR (NOI) 72 Numeric 2.55
------------------------------------------------------------------------------------------
Most Recent Financial As of Start Date 73 AN YYYYMMDD
------------------------------------------------------------------------------------------
Most Recent Financial As of End Date 74 AN YYYYMMDD
------------------------------------------------------------------------------------------
Most Recent Financial Indicator 75 AN TorY
------------------------------------------------------------------------------------------
NCF At Contribution 76 Numeric 1000000.00
------------------------------------------------------------------------------------------
DSCR (NCF) At Contribution 77 Numeric 1.5
------------------------------------------------------------------------------------------
Preceding Fiscal Year NCF 78 Numeric 1000000.00
==========================================================================================
====================================================================================================================================
Field Name Description/Comments
====================================================================================================================================
====================================================================================================================================
DSCR (NOI) At Contribution Should match the prospectus if available.
------------------------------------------------------------------------------------------------------------------------------------
Appraisal Value At Contribution
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Physical Occupancy At Contribution
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Financial As of Date
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Revenue
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Operating Expenses
------------------------------------------------------------------------------------------------------------------------------------
Prededing Fiscal Year NOI
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Yr Debt Service Amount Calculate using P20 (percentage) to get the allocated amount for each property
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year DSCR (NOI) Uses the property NOI and the allocated debt service amount
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year Physical Occupancy
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY Financial As of Date
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year Revenue
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY Operating Expenses
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year NOI
------------------------------------------------------------------------------------------------------------------------------------
Second PrecedingFY Debt Service Amount Calculate using P20 (percentage) to get the allocated amount for each property
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding Fiscal Year DSCR (NOI) Uses the prooerty NOI and the allocated debt service amount
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY Physical Occupancy
------------------------------------------------------------------------------------------------------------------------------------
Property Contribution Date Date Property was contributed
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Revenue Most Recent Revenue
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Operating Expenses Most Recent Operating Expenses
------------------------------------------------------------------------------------------------------------------------------------
Most Recent NOI Most Recent Net Operating Income
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Debt Service Amount Calculate using P20 (percentage) to get the allocated amount for each property
------------------------------------------------------------------------------------------------------------------------------------
Most Recent DSCR (NOI) Uses the property NOI and the allocated debt service amount
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Financial As of Start Date Start date used to calculate Most Recent information either YTD or trailing 12months
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Financial As of End Date End date used to calculate Most Recent information either YTD or trailing 12 months
------------------------------------------------------------------------------------------------------------------------------------
Most Recent Financial Indicator T=Trailing 12 months Y=Year to Date
------------------------------------------------------------------------------------------------------------------------------------
NCF At Contribution Net Cash Flow At Contribution. Should match the prospectus if available.
------------------------------------------------------------------------------------------------------------------------------------
DSCR (NCF) At Contribution DSCR At Contribution using NCF to calculate. Should match the prospectus if available.
------------------------------------------------------------------------------------------------------------------------------------
Preceding Fiscal Year NCF Preceding Fiscal Year Net Cash Flow related to Financial As of Date P53.
====================================================================================================================================
======================================================================
Loan Field
Field Name Reference
======================================================================
======================================================================
DSCR (NOI) At Contribution S66
----------------------------------------------------------------------
Appraisal Value At Contribution S67
----------------------------------------------------------------------
S68
----------------------------------------------------------------------
Physical Occupancy At Contribution S69
----------------------------------------------------------------------
----------------------------------------------------------------------
Preceding Fiscal Year Financial As of Date L58
----------------------------------------------------------------------
Preceding Fiscal Year Revenue L52
----------------------------------------------------------------------
Preceding Fiscal Year Operating Expenses L53
----------------------------------------------------------------------
Prededing Fiscal Year NOI L54
----------------------------------------------------------------------
Preceding Fiscal Yr Debt Service Xxxxxx X00
----------------------------------------------------------------------
Preceding Fiscal Year DSCR (NOI) L56
----------------------------------------------------------------------
Preceding Fiscal Year Physical Occupancy L57
----------------------------------------------------------------------
Second Preceding FY Financial As of Date L65
----------------------------------------------------------------------
Second Preceding Fiscal Year Revenue L59
----------------------------------------------------------------------
Second Preceding FY Operating Expenses L60
----------------------------------------------------------------------
Second Preceding Fiscal Year NOI L61
----------------------------------------------------------------------
Second PrecedingFY Debt Service Xxxxxx X00
----------------------------------------------------------------------
Second Preceding Fiscal Year DSCR (NOI) L63
----------------------------------------------------------------------
Second Preceding FY Physical Occupancy L64
----------------------------------------------------------------------
Property Contribution Date L85
----------------------------------------------------------------------
Most Recent Revenue L66
----------------------------------------------------------------------
Most Recent Operating Expenses L67
----------------------------------------------------------------------
Most Recent NOI L68
----------------------------------------------------------------------
Most Recent Debt Service Xxxxxx X00
----------------------------------------------------------------------
Most Recent DSCR (NOI) L70
----------------------------------------------------------------------
Most Recent Financial As of Start Date L72
----------------------------------------------------------------------
Most Recent Financial As of End Date L73
----------------------------------------------------------------------
Most Recent Financial Indicator L82
----------------------------------------------------------------------
NCF At Contribution S83
----------------------------------------------------------------------
DSCR (NCF) At Contribution S84
----------------------------------------------------------------------
Preceding Fiscal Year NCF L92
======================================================================
------------------------------------------------------------------------------------------------------------------------------------
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "PROPERTY"FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "P"
================================ ================================= ============================================== ==========
FIELD FORMAT LOAN FIELD
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS REFERENCE
================================ ================================= ============================================== ==========
================================ ================================= ============================================== ==========
Preceding Fiscal Year DSCR (NCF) 79 Numeric 2.55 Preceding Fiscal Year Debt Service Coverage L93
Ratio using NCF related to Financial As of
Date P53.
------------------------------------------------------------------------------------------------------------------------------------
Second Preceding FY NCF 80 Numeric 1000000.00 Second Preceding Fiscal Year Net Cash Flow L94
related to Financial As of Date P60.
------------------------------------------------------------------------------------------------------------------------------------
Second Preceidng FY DSCR (NCF) 81 Numeric 2.55 Second Preceding Fiscal Year Debt Service L95
Coverage Ratio using Net Cash Flow related
to Financial As of Date P60.
-------------------------------- -------------------------------- -------------------------------------------------------------
Most Recent NCF 82 Numeric 1000000.00 Most Recent Net Cash Flow related to L96
Financial As of Date P74.
-------------------------------- -------------------------------- -------------------------------------------------------------
Most Recent DSCR (NCF) 83 Numeric 2.55 Most Recent Debt Service Coverage Ratio L97
using Net Cash Flow related to Financial
As of Date P74.
------------------------------------------------------------------------------------------------------------------------------------
NOI/NCF Indicator 84 AN Text Indicates how NOI or Net Cash Flow was
calculated should be the same for each
financial period. See NOI/NCF Indicator Legend. L90
------------------------------------------------------------------------------------------------------------------------------------
Deferred Maintenance Flag 85 AN N Either Y=Yes or N=No, Deferred Maintenance
====================================================================================================================================
============================================-----==============================================================
PROPERTY TYPES CODE NOI/NCF INDICATOR
LEGEND LEGEND
============================================ ==============================================================
MF Multifamily CMSA Calculated using CMSA standard
-------------------------------------------- --------------------------------------------------------------
RT Retail Calculated using a definition given in the PSA
-------------------------------------------- --------------------------------------------------------------
HC Health Care U/W Calculated using the underwriting method
---------------------------------------------------------------------------------------------------------------
IN Industrial
--------------------------------------------
WH Warehouse
--------------------------------------------
MH Mobile Home Park
--------------------------------------------
OF Office
--------------------------------------------
MU Mixed Use
--------------------------------------------
LO Lodging
--------------------------------------------
--------------------------------------------
OT Other
============================================
------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT N
FORM OF COMPARATIVE FINANCIAL STATUS REPORT
The Form of Comparative Financial Status Report for this Agreement is set forth
in Annex K-1 to the Prospectus Supplement and is hereby incorporated.
N-1
EXHIBIT O
FORM OF REO STATUS REPORT
The Form of REO Status Report for this Agreement is set forth in Annex G-1 to
the Prospectus Supplement and is hereby incorporated.
O-1
EXHIBIT P
FORM OF WATCH LIST
The Form of Watch List for this Agreement is set forth in Annex H-1 to the
Prospectus Supplement and is hereby incorporated.
P-1
EXHIBIT Q
FORM OF DELINQUENT LOAN STATUS REPORT
The Form of Delinquent Loan Status Report for this Agreement is set forth in
Annex D-1 to the Prospectus Supplement and is hereby incorporated.
Q-1
EXHIBIT R
FORM OF HISTORICAL LOAN MODIFICATION REPORT
The Form of Historical Loan Modification Report for this Agreement is set forth
in Annex E-1 to the Prospectus Supplement and is hereby incorporated.
R-1
EXHIBIT S
FORM OF HISTORICAL LIQUIDATION REPORT
The Form of Historical Liquidation Report for this Agreement is set forth in
Annex F-1 to the Prospectus Supplement and is hereby incorporated.
S-1
EXHIBIT T
FORM OF NOI ADJUSTMENT WORKSHEET
The Form of NOI Adjustment Worksheet for this Agreement is set forth in Annex
J-1 to the Prospectus Supplement and is hereby incorporated.
T-1
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "BOND LEVEL" FILE
BOND LEVEL ONLY - REFLECTS DISTRIBUTION STATEMENTS
======================================================== =========================================================================
SPECIFICATIONS DESCRIPTION/COMMENTS
======================================================== =========================================================================
Character Set ASCII
-------------------------------------------------------- -------------------------------------------------------------------------
Field Delineation Comma
======================================================== =========================================================================
======================================================== ============================== ======================================
FORMAT
FIELD NAME # TYPE EXAMPLE DESCRIPTION/COMMENTS
======================================================== =============================== ======================================
======================================================== =============================== ======================================
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
(Consistent With CMSA Periodic Loan
File)
-------------------------------------------------------- -------------------------------- --------------------------------------
Distribution Date 2 AN YYYYMMDD Date Payments Made to
Certficateholders
-------------------------------------------------------- -------------------------------- --------------------------------------
Record Date 3 AN YYYYMMDD Date Class Must Be Held As Of To Be
Considered Holder of Record
-------------------------------------------------------- -------------------------------- --------------------------------------
Class Name/Class Id 4 AN A-1 Unique Class Identification Mnemonic
-------------------------------------------------------- -------------------------------- --------------------------------------
Cusip 5 AN 999999AA1 Cusip # (Null If No Cusip Exists)
-------------------------------------------------------- -------------------------------- --------------------------------------
Original Balance 6 Numeric 1000000 The Class Balance At Inception Of The
Issue
-------------------------------------------------------- -------------------------------- --------------------------------------
Notional Flag 7 AN Y "Y" For Notional
-------------------------------------------------------- -------------------------------- --------------------------------------
Beginning Balance 8 Numeric 100000 The Outstanding Principal Balance Of
The Class At The Beginning Of The
Current Period
-------------------------------------------------------- -------------------------------- --------------------------------------
Scheduled Principal 9 Numeric 1000 The Scheduled Principal Paid
-------------------------------------------------------- -------------------------------- --------------------------------------
Unscheduled Principal 10 Numeric 1000 The Unscheduled Principal Paid
-------------------------------------------------------- -------------------------------- --------------------------------------
Total Principal Distribution 11 Numeric 1000 Total Principal Payment Made
-------------------------------------------------------- -------------------------------- --------------------------------------
Deferred Interest 12 Numeric 1000 Any Interest Added To The Class
Balance Including Negative
Amortization
-------------------------------------------------------- -------------------------------- --------------------------------------
Realized Loss (Gain) 13 Numeric 1000 The Total Realized Loss of (Gain)
Allocated
-------------------------------------------------------- -------------------------------- --------------------------------------
Cumulative Realized Losses 14 Numeric 100000 Realized Losses Allocated
Cumulative-To-Date
-------------------------------------------------------- -------------------------------- --------------------------------------
Ending Balance 15 Numeric 1000 Outstanding Principal Balance Of The
Class At The End Of the Current Period
-------------------------------------------------------- -------------------------------- --------------------------------------
Current Index Rate 16 Numeric 0.055 The Current Index Rate Applicable To
The Calculation Of Current Period
Remittance Interest Rate
-------------------------------------------------------- -------------------------------- --------------------------------------
Current Remittance Rate/Pass-Through Rate 17 Numeric 0.075 Annualized Interest Rate Applicable To
The Calculation Of Current Period
Remittance Interest
-------------------------------------------------------- -------------------------------- --------------------------------------
Accrual Method 18 Numeric 1 1=30/360, 2=Actual/365, 3=Actual/360,
4=Actual/Actual, 5=Actual/366
-------------------------------------------------------- -------------------------------- --------------------------------------
Current Accrual Days 19 Numeric 30 The Number Of Accrual Days Applicable
To The Calculation Of Current Period
Remittance Interest
-------------------------------------------------------- -------------------------------- --------------------------------------
Interest Accrued 20 Numeric 1000 The Amount Of Accrued Interest
-------------------------------------------------------- -------------------------------- --------------------------------------
Prepayment Penalty/Premium Allocation 21 Numeric 1000 Total Amount Of Prepayment Penalties
Allocated
-------------------------------------------------------- -------------------------------- --------------------------------------
Yield Maintenance Allocation 22 Numeric 1000 Total Amount Of Yield Maintenance
Penalties Allocated
-------------------------------------------------------- -------------------------------- --------------------------------------
Other Interest Distribution 23 Numeric 1000 Other Specific Additions To Interest
-------------------------------------------------------- -------------------------------- --------------------------------------
Prepayment Interest Shortfall 24 Numeric 1000 Total Interest Adjustments For PPIS
-------------------------------------------------------- -------------------------------- --------------------------------------
Appraisal Reduction Allocation 25 Numeric 1000 Total Current Appraisal Reduction
Allocated
-------------------------------------------------------- -------------------------------- --------------------------------------
Other Interest Shortfall 26 Numeric 1000 Total Interest Adjustments Other Than
PPIS
======================================================== ================================ ======================================
======================================================== =============================== ======================================
FORMAT
FIELD NAME # TYPE EXAMPLE DESCRIPTION/COMMENTS
======================================================== =============================== ======================================
Total Interest Distribution 27 Numeric 1000 The Total Interest Payment Made
-------------------------------------------------------- -------------------------------- --------------------------------------
Cumulative Appraisal Reduction 28 Numeric 1000 Total Cumulative Appraisal Reduction
Allocated
-------------------------------------------------------- -------------------------------- --------------------------------------
Cumulative Prepayment Penalty/Premium Allocation 29 Numeric 1000 Total Amount Of Prepayment Penalties
Allocated To Date
-------------------------------------------------------- -------------------------------- --------------------------------------
Cumulative Yield Maintenance Allocation 30 Numeric 1000 Total Amount Of Yield Maintenance
Penalties Allocated To Date
-------------------------------------------------------- -------------------------------- --------------------------------------
Beginning Unpaid Interest Balance 31 Numeric 1000 Outstanding Interest Shortfall At The
Beginning Of The Current Period
-------------------------------------------------------- -------------------------------- --------------------------------------
Ending Unpaid Interest Balance 32 Numeric 1000 Outstanding Interest Shortfall At The
End Of The Current Period
-------------------------------------------------------- -------------------------------- --------------------------------------
DCR - Original Rating 33 AN AAA The Original Rating Of The Class By
Duff & Xxxxxx
-------------------------------------------------------- -------------------------------- --------------------------------------
DCR - Most Recent Rating 34 AN AAA The Most Recent Rating Of The Class By
Duff & Xxxxxx
-------------------------------------------------------- -------------------------------- --------------------------------------
DCR - Date Transmitted from Rating Agency 35 AN YYYYMMDD The Date On Which The Most Recent
Rating Was Provided To The Trustee By
Xxxxx'x
-------------------------------------------------------- -------------------------------- --------------------------------------
Fitch - Original Rating 36 AN AAA The Original Rating Of The Class By
Fitch
-------------------------------------------------------- -------------------------------- --------------------------------------
Fitch - Most Recent Rating 37 AN AAA The Most Recent Rating Of the Class By
Fitch
-------------------------------------------------------- -------------------------------- --------------------------------------
Fitch - Date Transmitted from Rating Agency 38 AN YYYYMMDD The Date On Which the Most Recent
Rating Was Provided To The Trustee By
Fitch
-------------------------------------------------------- -------------------------------- --------------------------------------
Xxxxx'x - Original Rating 39 AN AAA The Original Rating Of The Class By
Xxxxx'x
-------------------------------------------------------- -------------------------------- --------------------------------------
Xxxxx'x - Most Recent Rating 40 AN AAA The Most Recent Rating Of the Class By
Xxxxx'x
-------------------------------------------------------- -------------------------------- --------------------------------------
Xxxxx'x - Date Transmitted from Rating Agency 41 AN YYYYMMDD The Date On Which The Most Recent
Rating Was Provided To The Trustee By
Xxxxx'x
-------------------------------------------------------- -------------------------------- --------------------------------------
Standard & Poors - Original Rating 42 AN AAA The Original Rating Of The Class By
Standard & Poors
-------------------------------------------------------- -------------------------------- --------------------------------------
Standard & Poors - Most Recent Rating 43 AN AAA The Most Recent Rating Of The Class By
Standard & Poors
-------------------------------------------------------- -------------------------------- --------------------------------------
Standard & Poors - Date Transmitted from Rating Agency 44 AN YYYYMMDD The Date On Which The Most Recent
Rating Was Provided To the Trustee By
Standard & Poors
======================================================== =============================== ======================================
EXHIBIT U
FORM OF OPERATING STATEMENT ANALYSIS
The Form of Operating Statement Analysis for this Agreement is set forth in
Annex I-1 to the Prospectus Supplement and is hereby incorporated.
U-1
EXHIBIT V
[RESERVED]
V-1
EXHIBIT W
FORM OF CMSA LOAN FILE REPORT
W-1
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
======================================================== =========================================================================
SPECIFICATIONS DESCRIPTION/COMMENTS
======================================================== =========================================================================
======================================================== =========================================================================
Acceptable Media Types Magnetic Tape, Diskette, Electronic Transfer
-------------------------------------------------------- -------------------------------------------------------------------------
Character Set ASCII
-------------------------------------------------------- -------------------------------------------------------------------------
Field Delineation Comma
-------------------------------------------------------- -------------------------------------------------------------------------
Density (Bytes-Per-Inch) 1600 or 6250
-------------------------------------------------------- -------------------------------------------------------------------------
Magnetic Tape Label None (unlabeled)
-------------------------------------------------------- -------------------------------------------------------------------------
Magnetic Tape Blocking Factor 10285 (17 records per book)
-------------------------------------------------------- -------------------------------------------------------------------------
Physical Media Label Servicer Name; Data Type (Collection Period Data); Density (Bytes-Per-
Inch); Blocking Factor; Record Length
-------------------------------------------------------- -------------------------------------------------------------------------
Return Address Label Required for return of physical media (magnetic tape or diskette)
======================================================== =========================================================================
======================================================== ============================= ======================================
FORMAT
FIELD NAME # TYPE EXAMPLE DESCRIPTION/COMMENTS
======================================================== ============================= ======================================
-------------------------------------------------------- --------------------------------- --------------------------------------
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
-------------------------------------------------------- --------------------------------- --------------------------------------
Group Id 2 AN XXX9701A Unique Identification Number Assigned
To Each Loan Group Within An Issue
-------------------------------------------------------- --------------------------------- --------------------------------------
Loan Id 3 AN 00000000012345 Unique Identification Number Assigned
To Each Collateral Item In A Pool
-------------------------------------------------------- --------------------------------- --------------------------------------
Prospectus Loan Id 4 AN 123 Unique Identification Number Assigned
To Each Collateral Item In The
Prospectus
-------------------------------------------------------- --------------------------------- --------------------------------------
Distribution Date 5 AN YYYYMMDD Date Payments Made To
Certificateholders
-------------------------------------------------------- --------------------------------- --------------------------------------
Current Beginning Scheduled Balance 6 Numeric 100000.00 Outstanding Sched Prin Bal at
Beginning of current period that is
part of the trust
-------------------------------------------------------- --------------------------------- --------------------------------------
Current Ending Scheduled Balance 7 Numeric 100000.00 Outstanding Sched Prin Bal at End of
current period that is part of the
trust
-------------------------------------------------------- --------------------------------- --------------------------------------
Paid To Date 8 AN YYYYMMDD Date loan is paid through. One
frequency < the date the loan is due
for next payment
-------------------------------------------------------- --------------------------------- --------------------------------------
Current Index Rate 9 Numeric 0.09 Index Rate Used In The Determination
Of The Current Period Gross Interest
Rate
-------------------------------------------------------- --------------------------------- --------------------------------------
Current Note Rate 10 Numeric 0.09 Annualized Gross Rate Applicable To
Calculate The Current Period Scheduled
Interest
-------------------------------------------------------- --------------------------------- --------------------------------------
Maturity Date 11 AN YYYYMMDD Date Collateral Is Scheduled To Make
Its Final Payment
-------------------------------------------------------- --------------------------------- --------------------------------------
Servicer and Trustee Fee Rate 12 Numeric 0.00025 Annualized Fee Paid To The Servicer
And Trustee
-------------------------------------------------------- --------------------------------- --------------------------------------
Fee Rate/Strip Rate 1 13 Numeric 0.00001 Annualized Fee/Strip Netted Against
Current Note Rate = Net Rate
-------------------------------------------------------- --------------------------------- --------------------------------------
Fee Rate/Strip Rate 2 14 Numeric 0.00001 Annualized Fee/Strip Netted Against
Current Note Rate = Net Rate
-------------------------------------------------------- --------------------------------- --------------------------------------
Fee Rate/Strip Rate 3 15 Numeric 0.00001 Annualized Fee/Strip Netted Against
Current Note Rate = Net Rate
-------------------------------------------------------- --------------------------------- --------------------------------------
Fee Rate/Strip Rate 4 16 Numeric 0.00001 Annualized Fee/Strip Netted Against
Current Note Rate = Net Rate
-------------------------------------------------------- --------------------------------- --------------------------------------
Fee Rate/Strip Rate 5 17 Numeric 0.00001 Annualized Fee/Strip Netted Against
Current Note Rate = Net Rate
-------------------------------------------------------- --------------------------------- --------------------------------------
Net Rate 18 Numeric 0.0947 Annualized Interest Rate Applicable To
Calculate The Current Period
Remittance Int.
-------------------------------------------------------- --------------------------------- --------------------------------------
Next Index Rate 19 Numeric 0.09 Index Rate Used In The Determination
Of The Next Period Gross Interest Rate
-------------------------------------------------------- --------------------------------- --------------------------------------
Next Note Rate 20 Numeric 0.09 Annualized Gross Interest Rate
Applicable To Calc Of The Next Period
Sch. Interest
-------------------------------------------------------- --------------------------------- --------------------------------------
Next Rate Adjustment Date 21 AN YYYYMMDD Date Note Rate Is Next Scheduled To
Change
-------------------------------------------------------- --------------------------------- --------------------------------------
Next Payment Adjustment Date 22 AN YYYYMMDD Date Scheduled P& I Amounts Is Next
Scheduled To Change
-------------------------------------------------------- --------------------------------- --------------------------------------
Scheduled Interest Amount 23 Numeric 1000.00 Scheduled Gross Interest Payment Due
For The Current Period that goes to
the trust
-------------------------------------------------------- --------------------------------- --------------------------------------
Scheduled Principal Amount 24 Numeric 1000.00 Scheduled Principal Payment Due For
The Current Period that goes to the
trust
-------------------------------------------------------- --------------------------------- --------------------------------------
Total Scheduled P&I Due 25 Numeric 1000.00 Scheduled Principal & Interest Payment
Due for Current Period for the trust
======================================================== ================================= ======================================
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC"FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
======================================================== ============================= ======================================
FORMAT
FIELD NAME NUMBER EXAMPLE DESCRIPTION/COMMENTS
======================================================== ============================= ======================================
======================================================== ============================= ======================================
Neg am/Deferred Interest Amount 26 Numeric 1000.00 Negative Amortization/Deferred
Interest Amount Due For The Current
Period
-------------------------------------------------------- ----------------------------- --------------------------------------
Unscheduled Principal Collections 27 Numeric 1000.00 Unscheduled Payments Of Principal
Received During The Related Collection
Period
-------------------------------------------------------- ----------------------------- --------------------------------------
Other Principal Adjustments 28 Numeric 1000.00 Unscheduled Principal Adjustments For
The Related Collection Period
-------------------------------------------------------- ----------------------------- --------------------------------------
Liquidation/Prepayment Date 29 AN YYYYMMDD Date Unscheduled Payment Of Principal
Received
-------------------------------------------------------- ----------------------------- --------------------------------------
Prepayment Penalty/Yld Maint Rec'd 30 Numeric 1000.00 Additional Payment Req'd From Borrower
Due To Prepayment Of Loan Prior to
Maturity
-------------------------------------------------------- ----------------------------- --------------------------------------
Prepayment Interest Excess (Shortfall) 31 Numeric 1000.00 Interest Shortfall of Excess as
calculated by Servicer per the Trust
documents
-------------------------------------------------------- ----------------------------- --------------------------------------
Liquidation/Prepayment Code 32 Numeric 1 See Liquidation/Prepayment Codes
Legend
-------------------------------------------------------- ----------------------------- --------------------------------------
Most Recent ASER Amount 33 Numeric 1000.00 Appraisal Subordinated Entitlement
Reduction - The difference between a
full advance and the reduced advance
is the ASER or as defiend in the Trust
documents
-------------------------------------------------------- ----------------------------- --------------------------------------
Blank 34 AN Blank Left blank on purpose. (Note: was
previously Most Recent ASER Date.
Field is not considered applicable to
ASER.)
-------------------------------------------------------- ----------------------------- --------------------------------------
Cumulative ASER Amount 35 Numeric 1000.00 Cumulative Appraisal Subordinated
Entitlement Reduction
-------------------------------------------------------- ----------------------------- --------------------------------------
Actual Balance 36 Numeric 100000.00 Outstanding Actual Principal Balance
At The End Of The Current Period
-------------------------------------------------------- ----------------------------- --------------------------------------
Total P&I Advance Outstanding 37 Numeric 1000.00 Outstanding P&I Advances At The End Of
The Current Period
-------------------------------------------------------- ----------------------------- --------------------------------------
Total T&I Advance Outstanding 38 Numeric 1000.00 Outstanding Taxes and Insurance
Advances At The End Of The Current
Period
-------------------------------------------------------- ----------------------------- --------------------------------------
Other Expense Advance Outstanding 39 Numeric 1000.00 Other Outstanding Advances At The End
Of The Current Period
-------------------------------------------------------- ----------------------------- --------------------------------------
Status of Loan 40 AN 1 See Status Of Loan Legend
-------------------------------------------------------- ----------------------------- --------------------------------------
In Bankruptcy 41 AN Y Bankruptcy Status Of Loan (If In
Bankruptcy "Y", Else "N")
-------------------------------------------------------- ----------------------------- --------------------------------------
Foreclosure Date 42 AN YYYYMMDD P27 - If Multiple properties have the
same date then print that date
otherwise leave empty
-------------------------------------------------------- ----------------------------- --------------------------------------
REO Date 43 AN YYYYMMDD P28 - If Multiple properties have the
same dae then print that date
otherwise leave empty
-------------------------------------------------------- ----------------------------- --------------------------------------
Bankruptcy Date 44 AN YYYYMMDD Date Of Bankruptcy
-------------------------------------------------------- ----------------------------- --------------------------------------
Net Proceeds Received on Liquidation 45 Numeric 100000.00 Net Proceeds Rec'd On Liquidation To
Be Remitted to the Trsut per the Trust
Documents
-------------------------------------------------------- ----------------------------- --------------------------------------
Liquidation Expense 46 Numeric 100000.00 Expenses Associated With The Liq'n To
Be Netted from the Trust per the Trust
Documents
-------------------------------------------------------- ----------------------------- --------------------------------------
Realized Loss to Trust 47 Numeric 10000.00 Liquidation Balance Less Net
Liquidation Proceeds Received (as
defined in Trust documents)
-------------------------------------------------------- ----------------------------- --------------------------------------
Date of Last Modification 48 AN YYYYMMDD Date Loan Was Modified
-------------------------------------------------------- ----------------------------- --------------------------------------
Modification Code 49 Numeric 1 See Modification Codes Legend
-------------------------------------------------------- ----------------------------- --------------------------------------
Modified Note Rate 50 Numeric 0.09 Note Rate Loan Modified To
-------------------------------------------------------- ----------------------------- --------------------------------------
Modified Payment Rate 51 Numeric 0.09 Payment Rate Loan Modified To
-------------------------------------------------------- ----------------------------- --------------------------------------
Preceding Fiscal Year Revenue 52 Numeric 1000.00 P54 - If Multiple properties then sum
the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
-------------------------------------------------------- ----------------------------- --------------------------------------
Preceding Fiscal Year Operating Expenses 53 Numeric 1000.00 P55 - If Multiple properties then sum
the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
-------------------------------------------------------- ----------------------------- --------------------------------------
Preceding Fiscal Year NOI 54 Numeric 1000.00 P56 - If Multiple properties then sum
the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
-------------------------------------------------------- ----------------------------- --------------------------------------
Preceding Fiscal Year Debt Svc Amount 55 Numeric 1000.00 P57 - If Multiple properties then sum
the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
======================================================== ============================= ======================================
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
======================================================== ============================= ======================================
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
======================================================== ============================= ======================================
======================================================== ============================= ======================================
Preceding Fiscal Year DSCR (NOI) 56 Numeric 2.55 P58 - If Multiple properties populate
using the "DSCR Indicator Legend"
rule. Preceding Fiscal Yr Debt Svc
Cvrge Ratio using NOI
-------------------------------------------------------- ----------------------------- --------------------------------------
Preceding Fiscal Year Physical Occupancy 57 Numeric 0.85 P59 - If Multiple properties, Use
weighted average by using the
calculation [Current Allocated %
(Prop) * Occupancy (Oper)] for each
Property, if missing any then leave
empty
-------------------------------------------------------- ----------------------------- --------------------------------------
Preceding Fiscal Year Financial As of Date 58 AN YYYYMMDD P53 - If Multiple properties and all
the same then print the date, if
missing any then leave empty
-------------------------------------------------------- ----------------------------- --------------------------------------
Second Preceding Fiscal Year Revenue 59 Numeric 1000.00 P61 - If Multiple properties then sum
the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
-------------------------------------------------------- ----------------------------- --------------------------------------
Second Preceding Fiscal Year Operating Expenses 60 Numeric 1000.00 P62 - If Multiple properties then sum
the value, is missing any then
populate using the "DSCR Indicator
Legend" rule
-------------------------------------------------------- ----------------------------- --------------------------------------
Second Preceding Fiscal year NOI 61 Numeric 1000.00 P63 - If Multiple properties then sum
the value, is missing any then
populate using the "DSCR Indicator
Legend" rule
-------------------------------------------------------- ----------------------------- --------------------------------------
Second Preceding Fiscal year Debt Service Amount 62 Numeric 1000.00 P64 - If Multiple properties then sum
the value, is missing any then
populate using the "DSCR Indicator
Legend" rule
-------------------------------------------------------- ----------------------------- --------------------------------------
Second Preceding Fiscal year DSCR (NOI) 63 Numeric 2.55 P65 - If Multiple properties populate
using the "DSCR Indicator Legend"
rule. Second Preceding Fiscal Year
Debt Service Coverage Ratio using NOI
-------------------------------------------------------- ----------------------------- --------------------------------------
Second Preceding Fiscal year Physical Occupancy 64 Numeric 0.85 P66 - If Multiple properties, Use
weighted average by using the
calculation [Current Allocated %
(Prop) * Occupancy (Oper)] for each
Property, if missing any then leave
empty
-------------------------------------------------------- ----------------------------- --------------------------------------
Second Preceding Fiscal Year Financial As of Date 65 AN YYYYMMDD P60 - If Multiple properties and all
the same then print the date, if
missing any then leave empty
-------------------------------------------------------- ----------------------------- --------------------------------------
Most Recent Revenue 66 Numeric 1000 P68 - If Multiple properties then sum
the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
-------------------------------------------------------- ----------------------------- --------------------------------------
Most Recent Operating Expenses 67 Numeric 1000.00 P69 - If Multiple properties then the
sum the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
-------------------------------------------------------- ----------------------------- --------------------------------------
Most Recent NOI 68 Numeric 1000.00 P70 - If Multiple properties then sum
the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
-------------------------------------------------------- ----------------------------- --------------------------------------
Most Recent Debt Service Amount 69 Numeric 1000.00 P71 - If Multiple properties then sum
the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
-------------------------------------------------------- ----------------------------- --------------------------------------
Most Recent DSCR (NOI) 70 Numeric 2.55 P72 - If Multiple properties populate
using the "DSCR Indicator Legend"
rule. Most Recent Debt Service
Coverage Ratio, using NOI
-------------------------------------------------------- ----------------------------- --------------------------------------
Most Recent Physical Occupancy 71 Numeric 0.85 P29 - If Multiple properties, Use
weighted average by using the
calculation [Current Allocated %
(Prop) * Occupance )Oper)] for each
Property, if missing any then leave
empty
======================================================== ============================= ======================================
X-1-1
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
======================================================== ============================= ======================================
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
======================================================== ============================= ======================================
======================================================== ============================= ======================================
Most Recent Financial As of Start Date 72 AN YYYYMMDD P73 - If Multiple properties and all
the same then print the date, if
missing any then leave empty
-------------------------------------------------------- ----------------------------- --------------------------------------
Most Recent Financial As of End Date 73 AN YYYYMMDD P74 - If Multiple properties and all
the same then print the date, if
missing any then leave empty
-------------------------------------------------------- ----------------------------- --------------------------------------
Most Recent Appraisal Date 74 AN YYYYMMDD P24 - If Multiple properties and all
the same then print the date, if
missing any then leave empty
-------------------------------------------------------- ----------------------------- --------------------------------------
Most Recent Appraisal Value 75 Numeric 100000 P25 - If Multiple properties then sum
the value, if missing any then leave
empty
-------------------------------------------------------- ----------------------------- --------------------------------------
Workout Strategy Code 76 Numeric 1 See Workout Strategy Codes Legend
-------------------------------------------------------- ----------------------------- --------------------------------------
Most Recent Special Servicer Transfer Date 77 AN YYYYMMDD Date Transferred To The Special
Servicer
-------------------------------------------------------- ----------------------------- --------------------------------------
Most Recent Master Servicer Return Date 78 AN YYYYMMDD Date Returned To The Master Servicer
or Primary Servicer
-------------------------------------------------------- ----------------------------- --------------------------------------
Date Asset Expected to be Resolved or Foreclosed 79 AN YYYYMMDD P26 - If Multiple properties then
print the latest date from the
affiliated properties. If in
Foreclosure - Expected Date of
Foreclosure and if REO - Expected Sale
Date
-------------------------------------------------------- ----------------------------- --------------------------------------
Blank 80 AN Blank Left blank on purpose. (Note: was
previously Year Renovated. Use the
Property File field 15 instead)
-------------------------------------------------------- ----------------------------- --------------------------------------
Current Hyper Amortizing Date 81 AN YYYYMMDD S79 - Current Anticipated Repayment
Date. Date will be the same as setup
file unless the loan is modified and a
new date assigned
-------------------------------------------------------- ----------------------------- --------------------------------------
Most Recent Financial Indicator 00 XX X xx X X00 - X = Trailing 12 months Y = Year
to Date, Check Start & End Date
Applied to field L66 to L73. If
Multiple properties and all the same
then print the value, if missing any
or if the values are not the same,
then leave empty.
-------------------------------------------------------- ----------------------------- --------------------------------------
Last Setup Change Date 83 AN YYYYMMDD S82 - Distribution Date that
information changed last in the setup
file by loan
-------------------------------------------------------- ----------------------------- --------------------------------------
Last Loan Contribution Date 84 AN YYYYMMDD Date the loan was contributed
-------------------------------------------------------- ----------------------------- --------------------------------------
Last Property Contribution Date 85 AN YYYYMMDD P67 - Date the latest property or
properties were contributed. For
Multiple properties print the latest
date from the affiliated properties
-------------------------------------------------------- ----------------------------- --------------------------------------
Number of Properties 86 Numeric 13.00 S54 - The Number of Properties
Underlying the Mortgage Loan
-------------------------------------------------------- ----------------------------- --------------------------------------
Preceding Year DSCR Indicator 87 AN Text Flag used to explain how the DSCR was
calculated when there are multiple
properties. See DSCR Indicator Legend.
-------------------------------------------------------- ----------------------------- --------------------------------------
Second Preceding Year DSCR Indicator 88 AN Text Flag used to explain how the DSCR was
calculated when there are multiple
properties. See DSCR Indicator Legend.
-------------------------------------------------------- ----------------------------- --------------------------------------
Most Recent DSCR Indicator 89 AN Text Flag used to explain how the DSCR was
calculated when there are multiple
properties. See DSCR Indicator Legend.
-------------------------------------------------------- ----------------------------- --------------------------------------
NOI/NCF Indicator 90 AN Text Indicates how NOI or Net Cash Flow was
calculated should be the same for each
financial period. See NOI/NCF
Indicator Legend. P84 - If Multiple
Properties and all the same then print
value, if missing any or if the values
are not the same, then leave empty.
-------------------------------------------------------- ----------------------------- --------------------------------------
Date of Assumption 91 AN YYYYMMDD Date the loan last assumed by a new
borrower - empty if never assume
======================================================== ============================= ======================================
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
======================================================== ============================= ======================================
FIELD FORMAT
FIELD NAME NUMBER TYPE EXAMPLE DESCRIPTION/COMMENTS
======================================================== ============================= ======================================
======================================================== ============================= ======================================
Preceding Fiscal Year NCF 92 Numeric 1000.00 P78 - Preceding Fiscal Year Net Cash
Flow related to Financial As of Date
L58. If Multiple properties then sum
the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
-------------------------------------------------------- ----------------------------- --------------------------------------
Preceding Fiscal Year DSCR (NCF) 93 Numeric 2.55 P79 - Preceding Fiscal Yr Debt Service
Coverage Ratio using NCF related to
Financial As of Date L58. If Multiple
properties populate using the "DSCR
Indicator Legend" rule
-------------------------------------------------------- ----------------------------- --------------------------------------
Second Preceding Fiscal Year NCF 94 Numeric 1000.00 P80 - Second Preceding Fiscal Year Net
Cash Flow related to Financial As of
Date L65. If Multiple properties then
sum the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
-------------------------------------------------------- ----------------------------- --------------------------------------
Second Preceding Fiscal Year DSCR (NCF) 95 Numeric 2.55 P81 - Second Preceding Fiscal Year
Debt Service Coverage Ratio using Net
Cash Flow related to Financial As of
Date L65. If Multiple properties
populate using the "DSCR Indicator
Legend" rule
-------------------------------------------------------- ----------------------------- --------------------------------------
Most Recent NCF 96 Numeric 1000.00 P82 - Most Recent Net Cash Flow
related to Financial As of Ending Date
L73. If Multiple properties then sum
the value, if missing any then
populate using the "DSCR Indicator
Legend" rule
-------------------------------------------------------- ----------------------------- --------------------------------------
Most Recent DSCR (NCF) 97 Numeric 1000.00 P83 - Most Recent Debt Service
Coverage Ratio using Net Cash Flow
related to Financial As of Ending Date
L73. If Multiple properties populate
using the "DSCR Indicator Legend" rule
-------------------------------------------------------- ----------------------------- --------------------------------------
Defeasance Status 98 AN Text See Defeasance Status Legend
-------------------------------------------------------- ----------------------------- --------------------------------------
ARA Amount 99 Numeric 1000.00 Appraisal Reduction Amount - Excess of
the principal balance over the defined
appraisal % or as defined in the trust
documents
-------------------------------------------------------- ----------------------------- --------------------------------------
ARA Date 100 AN YYYYMMDD Date of appraisal used to calculate
ARA
-------------------------------------------------------- ----------------------------- --------------------------------------
Credit Tenant Lease 101 AN Y S87 - Y = Yes, N = No
======================================================== ============================= ======================================
X-1-1
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "LOAN PERIODIC" UPDATE FILE
(DATA RECORD LAYOUT)
CROSS REFERENCED AS "L"
============================================= ====================================================================================
Workout Strategy Code Legend STATUS OF MORTGAGE LOAN LEGEND
============================================= ====================================================================================
1 Modification A Payment Not Received But Still In Grace Period
--------------------------------------------- ------------------------------------------------------------------------------------
2 Foreclosure B Late Payment But Less Than 30 Days Delinquent
--------------------------------------------- ------------------------------------------------------------------------------------
3 Bankruptcy 0 Current
--------------------------------------------- ------------------------------------------------------------------------------------
4 Extension 1 30-59 Days Delinquent
--------------------------------------------- ------------------------------------------------------------------------------------
5 Note Sale 2 60-89 Days Delinquent
--------------------------------------------- ------------------------------------------------------------------------------------
6 DPO 3 90+ Days Delinquent
--------------------------------------------- ------------------------------------------------------------------------------------
7 REO 4 Assumed Scheduled Payment (Performing Matured Balloon)
--------------------------------------------- ------------------------------------------------------------------------------------
8 Resolved 7 Foreclosure
--------------------------------------------- ------------------------------------------------------------------------------------
9 Pending Return to Master Servicer 9 REO
--------------------------------------------- ====================================================================================
10 Deed in Lieu of Foreclosure
--------------------------------------------- ====================================================================================
11 Full Payoff MODIFICATION CODE LEGEND
--------------------------------------------- ====================================================================================
12 Reps and Warranties 1 Maturity Date Extension
--------------------------------------------- ------------------------------------------------------------------------------------
13 Other of TBD 2 Amortization Change
============================================= ------------------------------------------------------------------------------------
3 Principal Write-Off
============================================= ------------------------------------------------------------------------------------
LIQUIDATION/PREPAYMENT CODE LEGEND 4 Combination
============================================= ====================================================================================
1 Partial Liq'n (Curtailment)
--------------------------------------------- ====================================================================================
2 Payoff Prior to Maturity STATUS OF MORTGAGE LOAN LEGEND
--------------------------------------------- ====================================================================================
3 Disposition P Partial - Not all properties received financials, servicer to leave empty
--------------------------------------------- ------------------------------------------------------------------------------------
4 Repurchase/Substitution A Average - Not all properties received financials, servicer allocates Debt
Service only to properties where financials are received
--------------------------------------------- ------------------------------------------------------------------------------------
5 Full Payoff at Maturity F Full - All Statements Collected for all properties
--------------------------------------------- ------------------------------------------------------------------------------------
6 DPO W Worst Case - Not all properties received financials, servicer allocates 100%
of Debt Service to all properties where financials were received
--------------------------------------------- ------------------------------------------------------------------------------------
7 Liquidation N None Collected - No financials were received
--------------------------------------------- ------------------------------------------------------------------------------------
8 Payoff w/penalty C Consolidated - All properties reported on one "rolled up" financial from the
borrower
--------------------------------------------- ====================================================================================
9 Payoff w/yield Maintenance
--------------------------------------------- ====================================================================================
10 Curtailment w/Penalty NOI/NCF INDICATOR LEGEND
--------------------------------------------- ====================================================================================
11 Curtailment w/Yield Maintenance CMSA Calculated using CMSA standard
============================================= ------------------------------------------------------------------------------------
PSA Calculated using a definition given in the PSA
============================================= ------------------------------------------------------------------------------------
DEFEASANCE STATUS LEGEND U/W Calculated using the underwriting method
============================================= ====================================================================================
P Partial Defeasance
---------------------------------------------
F Full Defeasance
---------------------------------------------
N No Defeasance Occurred
---------------------------------------------
X Defeasance not Allowable
=============================================
EXHIBIT X-1
FORM OF CERTIFICATEHOLDER CONFIRMATION CERTIFICATE
REQUEST BY BENEFICIAL HOLDER
[Date]
Norwest Bank Minnesota, National Association
Three Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Services (CMBS) - First Union National Bank
Commercial Mortgage Trust, Series 1999-C4
Re: First Union National Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 1999-C4
In accordance with Section 3.15 of the Pooling and Servicing
Agreement dated as of December 1, 1999 (the "Pooling and Servicing Agreement"),
among First Union Commercial Mortgage Securities, Inc. as depositor (the
"Depositor"), First Union National Bank, as master servicer, ORIX Real Estate
Capital Markets, LLC, as special servicer, and Norwest Bank Minnesota, National
Association, as trustee (in such capacity, the "Trustee"), with respect to the
First Union National Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C4 (the "Certificates"), the undersigned
hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner of the Class ____
Certificates.
2. The undersigned is requesting access to the information posted to
the Trustee's Internet Website pursuant to Section 4.02 of the
Pooling and Servicing Agreement, or the information identified on
the schedule attached hereto pursuant to Section 3.15 of the Pooling
and Servicing Agreement (the "Information").
3. In consideration of the Trustee's disclosure to the undersigned of
the Information, the undersigned will keep the Information
confidential (except from its agents and auditors), and such
Information will not, without the prior written consent of the
Trustee, be disclosed by the undersigned or by its officers,
directors, partners employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in
whole or in part; provided that the undersigned may provide all or
any part of the Information to any other person or entity that holds
or is contemplating the purchase of any Certificate or interest
X-1-1
therein, but only if such person or entity confirms in writing such
ownership interest or prospective ownership interest and agrees to
keep it confidential.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the
Securities Act of 1933, as amended, (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or would require
registration of any Certificate pursuant to Section 5 of the
Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify
the Depositor, the Trustee and the Trust for any loss, liability or
expense incurred thereby with respect to any such breach by the
undersigned or any of its Representatives.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
_______________________________________
BENEFICIAL HOLDER OF A
CERTIFICATE
By:____________________________________
Name:__________________________________
Title:_________________________________
Phone:_________________________________
X-1-2
EXHIBIT X-2
FORM PROSPECTIVE PURCHASER CERTIFICATE
[Date]
Norwest Bank Minnesota, National Association
Three Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Services (CMBS) - First Union National Bank
Commercial Mortgage Trust, Series 1999-C4
Re: First Union National Bank Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates,
Series 1999-C4 (the "Certificates")
In accordance with Section 3.15 of the Pooling and Servicing Agreement,
dated as of December 1, 1999 (the "Pooling and Servicing Agreement"), among
First Union Commercial Mortgage Securities, Inc., as depositor (the
"Depositor"), First Union National Bank as master servicer, ORIX Real Estate
Capital Markets, LLC, as special servicer, and Norwest Bank Minnesota, National
Association as trustee (in such capacity, the "Trustee"), with respect to the
First Union National Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C4 (the "Certificates"), the undersigned
hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class __
Certificates.
2. The undersigned is requesting access to the information posted to the
Trustee's Internet Website pursuant to Section 4.02 of the Pooling and
Servicing Agreement, or the information identified on the schedule
attached hereto pursuant to Section 3.15 of the Pooling and Servicing
Agreement (the "Information") for use in evaluating such possible
investment.
3. In consideration of the Trustee's disclosure to the undersigned of the
Information, the undersigned will keep the Information confidential
(except from its agents and auditors), and such Information will not,
without the prior written consent of the Trustee, be disclosed by the
undersigned or by its officers, directors, partners employees, agents or
representatives (collectively, the "Representatives") in any manner
whatsoever, in whole or in part.
X-2-1
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange Act
of 1934, as amended, or would require registration of any Certificate
pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this agreement
by itself or any of its Representatives and shall indemnify the Depositor,
the Trustee and the Trust for any loss, liability or expense incurred
thereby with respect to any such breach by the undersigned or any of its
Representatives.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
_______________________________________
[PROSPECTIVE PURCHASER]
By:____________________________________
Name:__________________________________
Title:_________________________________
Phone:_________________________________
X-2-2
EXHIBIT Y
FORM OF CMSA BOND FILE REPORT
X-2-3
EXHIBIT Z
FORM OF CMSA COLLATERAL FILE REPORT
X-2-4
COMMERCIAL MORTGAGE SECURITIES ASSOCIATION
CMSA "COLLATERAL SUMMARY" FILE
COLLATERAL LEVEL SUMMARY - SUMMARIZES CMSA LOAN PERIODIC UPDATE FILE
=========================================== ======================================================================================
SPECIFICATIONS DESCRIPTION/COMMENTS
=========================================== ======================================================================================
Character Set ASCII
------------------------------------------- --------------------------------------------------------------------------------------
Field Delineation Comma
=========================================== ======================================================================================
=========================================== ======================================================================================
PER FORMAT
FIELD NAME REF # TYPE EXAMPLE DESCRIPTION/COMMENTS
=========================================== ======================================================================================
Transaction Id 1 AN XXX97001 Unique Issue Identification Mnemonic
------------------------------------------- ------------------------------------- -----------------------------------------------
Group ID 2 AN XXX97001 Unique Identification Number Assigned To Each
Loan Group Within An Issue
------------------------------------------- ------------------------------------- -----------------------------------------------
Distribution Date 3 AN YYYYMMDD Date Payments Made To Certficateholders
------------------------------------------- ------------------------------------- -----------------------------------------------
Original Loan Count 4 Numeric 100 Number of loans at time of securitization
------------------------------------------- ------------------------------------- -----------------------------------------------
Ending current period loan count 5 Numeric 99 Number of loans at end of current period
------------------------------------------- ------------------------------------- -----------------------------------------------
Ending current period collateral balance 7 6 Numeric 1000000.00 Aggregate scheduled balance of loans at end of
current period
------------------------------------------- ------------------------------------- -----------------------------------------------
1 month Delinquent - number 7 Numeric 1 Number of loans one month delinquent
------------------------------------------- ------------------------------------- -----------------------------------------------
1 month Delinquent - scheduled balance 8 Numeric 1000.00 Scheduled principal balance of loans one month
delinquent
------------------------------------------- ------------------------------------- -----------------------------------------------
2 months Delinquent - number 9 Numeric 1 Number of loans two months delinquent
------------------------------------------- ------------------------------------- -----------------------------------------------
2 months Delinquent - scheduled balance 10 Numeric 1000.00 Scheduled principal balance of loans two months
delinquent
------------------------------------------- ------------------------------------- -----------------------------------------------
3 months Delinquent - number 11 Numeric 1 Number of loans three months delinquent
------------------------------------------- ------------------------------------- -----------------------------------------------
3 months Delinquent - scheduled balance 12 Numeric 1000.00 Scheduled principal balance of loans three
months delinquent
------------------------------------------- ------------------------------------- -----------------------------------------------
Foreclosure - number 13 Numeric 1 Number of loans in foreclosure - overrides
loans in delinquency
------------------------------------------- ------------------------------------- -----------------------------------------------
Foreclosure - schedule balance 14 Numeric 1000.00 Scheduled principal balance of loans in
foreclosure - overrides loans in delinquency
------------------------------------------- ------------------------------------- -----------------------------------------------
REO - number 15 Numeric 1 Number of REOs - overrides loans in delinquency
or foreclosure
------------------------------------------- ------------------------------------- -----------------------------------------------
REO - scheduled balance 16 Numeric 1000.00 Book value of REOs - overrides loans in
delinquency or foreclosure
------------------------------------------- ------------------------------------- -----------------------------------------------
Specially serviced - number 17 Numeric 1 Number of specially serviced loans - includes
loans in delinquency, foreclosure, REO
------------------------------------------- ------------------------------------- -----------------------------------------------
Specially serviced - scheduled balance 18 Numeric 1000.00 Scheduled principal of Specially Serviced loans
------------------------------------------- ------------------------------------- -----------------------------------------------
In Bankruptcy - number 19 Numeric 1 Number of loans in bankruptcy - included in
delinquency aging category
------------------------------------------- ------------------------------------- -----------------------------------------------
In Bankruptcy - scheduled balance 20 Numeric 1000.00 Scheduled principal balance of loans in
bankruptcy-included in delinquency aging
category
------------------------------------------- ------------------------------------- -----------------------------------------------
Prepaid loans - number 21 Numeric 1 Number of prepayments in full for the current
period
------------------------------------------- ------------------------------------- -----------------------------------------------
Prepaid loans - principal 22 Numeric 1000.00 Principal balance of loans prepaid in full for
the current period
------------------------------------------- ------------------------------------- -----------------------------------------------
Total unscheduled principal 27&28 23 Numeric 1000.00 Includes prepayments in full, partial
pre-payments, curtailments in the current
period
------------------------------------------- ------------------------------------- -----------------------------------------------
Total Penalty for the period 24 Numeric 1000.00 The aggregate prepayment or yield maintenance
penalties on the loans for the period
------------------------------------------- ------------------------------------- -----------------------------------------------
Current realized losses (gains) 47 25 Numeric 1000.00 Realized losses (gain) in the current period
------------------------------------------- ------------------------------------- -----------------------------------------------
Cumulative realized losses 26 Numeric 1000.00 Cumulative realized losses
------------------------------------------- ------------------------------------- -----------------------------------------------
Appraisal Reduction Amount 33 27 Numeric 1000.00 Total Current Appraisal Reduction Allocated
------------------------------------------- ------------------------------------- -----------------------------------------------
Cumulative Appraisal Reduction 35 28 Numeric 1000.00 Total Cumulative Appraisal Reduction Allocated
------------------------------------------- ------------------------------------- -----------------------------------------------
Total P&I Advance Outstanding 37 29 Numeric 1000.00 Outstanding P&I Advances At The End Of The
Current Period
=========================================== ===================================== ===============================================
=========================================== ======================================================================================
PER FORMAT
FIELD NAME REF # TYPE EXAMPLE DESCRIPTION/COMMENTS
=========================================== ======================================================================================
Total T&I Advance Outstanding 38 30 Numeric 1000.00 Outstanding Taxes & Insurance Advances At The
End Of The Current Period
------------------------------------------- ------------------------------------- -----------------------------------------------
Other Expense Advance Outstanding 39 31 Numeric 1000.00 Other Outstanding Advances At The End Of The
Current Period
------------------------------------------- ------------------------------------- -----------------------------------------------
Reserve Balances 32 Numeric 1000.00 Balance of cash or equivalent reserve accounts
pledged as credit enhancement
------------------------------------------- ------------------------------------- -----------------------------------------------
LOC Balances 33 Numeric 1000.00 Balance of letter of credit reserve accounts
pledged as credit enhancement
------------------------------------------- ------------------------------------- -----------------------------------------------
Amortization WAM 34 Numeric 333 Weighted average maturity based on amortization
term
------------------------------------------- ------------------------------------- -----------------------------------------------
Maturity WAM 35 Numeric 333 Weighted average maturity based on term to
maturity
------------------------------------------- ------------------------------------- -----------------------------------------------
Calculated WAC 36 Numeric 0.105 Weighted average coupon used to calculate gross
interest
=========================================== ======================================================================================
X-2-6
