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FIRST UNION COMMERCIAL MORTGAGE SECURITIES, INC.
Depositor
and
FIRST UNION NATIONAL BANK
Master Servicer
and
BANC ONE MORTGAGE CAPITAL MARKETS, LLC
Special Servicer
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of May 1, 1999
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$1,181,484,821
Commercial Mortgage Pass-Through Certificates
Series 1999-C2
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TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms...............................................................................3
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans...............................................................60
SECTION 2.02. Acceptance of the Trust Fund by Trustee....................................................62
SECTION 2.03. Mortgage Loan Seller's Repurchase or Substitution of Mortgage Loans for Document
Defects and Breaches of Representations and Warranties.....................................63
SECTION 2.04. Representations and Warranties of Depositor................................................65
SECTION 2.05. Execution, Authentication and Delivery of Class R-I Certificates; Creation of
REMIC I Regular Interests..................................................................67
SECTION 2.06. Conveyance of REMIC I Regular Interests; Acceptance of REMIC II by Trustee.................67
SECTION 2.07. Execution, Authentication and Delivery of Class R-II Certificates..........................67
SECTION 2.08. Conveyance of REMIC II Regular Interests; Acceptance of REMIC III by Trustee...............67
SECTION 2.09. Execution, Authentication and Delivery of REMIC III Certificates...........................68
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.......................................................69
SECTION 3.02. Collection of Mortgage Loan Payments.......................................................70
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing Accounts; Reserve
Accounts...................................................................................72
SECTION 3.04. Certificate Account, Interest Reserve Account and Distribution Account.....................76
SECTION 3.05. Permitted Withdrawals From the Certificate Account, Interest Reserve Account and
the Distribution Account...................................................................79
SECTION 3.06. Investment of Funds in the Servicing Accounts, the Reserve Accounts, the
Certificate Account, the Distribution Account and the REO Account..........................83
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and Fidelity Coverage..............85
SECTION 3.08. Enforcement of Alienation Clauses..........................................................88
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required Appraisals.............................89
SECTION 3.10. Trustee and Custodian to Cooperate; Release of Mortgage Files..............................92
SECTION 3.11. Servicing Compensation.....................................................................93
SECTION 3.12. Property Inspections; Collection of Financial Statements; Delivery of Certain
Reports....................................................................................96
SECTION 3.13. Annual Statement as to Compliance..........................................................99
SECTION 3.14. Reports by Independent Public Accountants.................................................100
SECTION 3.15. Access to Certain Information.............................................................100
SECTION 3.16. Title to REO Property; REO Account........................................................103
SECTION 3.17. Management of REO Property................................................................105
SECTION 3.18. Sale of Mortgage Loans and REO Properties.................................................108
SECTION 3.19. Additional Obligations of Master Servicer and Special Servicer............................111
SECTION 3.20. Modifications, Waivers, Amendments and Consents...........................................111
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special Servicer; Record Keeping........116
SECTION 3.22. Sub-Servicing Agreements..................................................................120
SECTION 3.23. Representations and Warranties of Master Servicer and Special Servicer....................122
SECTION 3.24. Sub-Servicing Agreement Representation and Warranty.......................................126
SECTION 3.25. Designation of Controlling Class Representative...........................................126
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.............................................................................128
SECTION 4.02. Statements to Certificateholders; CSSA Loan File Report...................................140
SECTION 4.03. P&I Advances..............................................................................145
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund Expenses; Allocation of
Certificate Deferred Interest.............................................................148
SECTION 4.05. Calculations..............................................................................150
SECTION 4.06. Use of Agents.............................................................................151
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates..........................................................................151
SECTION 5.02. Registration of Transfer and Exchange of Certificates.....................................152
SECTION 5.03. Book-Entry Certificates...................................................................158
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.........................................159
SECTION 5.05. Persons Deemed Owners.....................................................................160
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special Servicer..............................161
SECTION 6.02. Merger, Consolidation or Conversion of Depositor or Master Servicer or Special
Servicer..................................................................................161
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer and Special Servicer................162
SECTION 6.04. Resignation of Master Servicer and the Special Servicer...................................163
SECTION 6.05. Rights of Depositor and Trustee in Respect of Master Servicer and the Special
Servicer..................................................................................164
SECTION 6.06. Depositor, Master Servicer and Special Servicer to Cooperate with Trustee.................164
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate with Master Servicer.................165
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with Special Servicer.................165
SECTION 6.09. Designation of Special Servicer by the Controlling Class..................................165
SECTION 6.10. Master Servicer or Special Servicer as Owner of a Certificate.............................166
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.........................................................................168
SECTION 7.02. Trustee to Act; Appointment of Successor..................................................173
SECTION 7.03. Notification to Certificateholders........................................................174
SECTION 7.04. Waiver of Events of Default...............................................................174
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default......................................175
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.........................................................................175
SECTION 8.02. Certain Matters Affecting Trustee.........................................................177
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of Certificates or Mortgage Loans..........178
SECTION 8.04. Trustee May Own Certificates..............................................................179
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of Trustee..................................179
SECTION 8.06. Eligibility Requirements for Trustee......................................................179
SECTION 8.07. Resignation and Removal of Trustee........................................................180
SECTION 8.08. Successor Trustee.........................................................................181
SECTION 8.09. Merger or Consolidation of Trustee........................................................182
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.............................................182
SECTION 8.11. Appointment of Custodians.................................................................183
SECTION 8.12. Appointment of Authenticating Agents......................................................184
SECTION 8.13. Appointment of Paying Agent...............................................................185
SECTION 8.14. Appointment of REMIC Administrators.......................................................186
SECTION 8.15. Access to Certain Information.............................................................187
SECTION 8.16. Representations, Warranties and Covenants of Trustee......................................187
SECTION 8.17. Reports to the Securities and Exchange Commission; Available Information..................188
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans..........................190
SECTION 9.02. Additional Termination Requirements.......................................................192
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01. REMIC Administration......................................................................194
SECTION 10.02. Grantor Trust Administration..............................................................198
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.................................................................................200
SECTION 11.02. Recordation of Agreement; Counterparts....................................................202
SECTION 11.03. Limitation on Rights of Certificateholders................................................202
SECTION 11.04. Governing Law.............................................................................203
SECTION 11.05. Notices...................................................................................203
SECTION 11.06. Severability of Provisions................................................................204
SECTION 11.07. Grant of a Security Interest..............................................................204
SECTION 11.08. Xxxxxx Act................................................................................204
SECTION 11.09. Successors and Assigns; Beneficiaries.....................................................205
SECTION 11.10. Article and Section Headings..............................................................205
SECTION 11.11. Notices to Rating Agencies................................................................205
SECTION 11.12. Complete Agreement........................................................................206
EXHIBITS
Exhibit Description Exhibit No. Section Reference
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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"
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"
Form of Schedule of Exceptions to Mortgage C-1 Section 2.02(a)
File Delivery
Form of Custodial Certification C-2 Section 2.02(a)
Form of Master Servicer Request for Release D-1 Section 1.01 Definition of "Request
for Release";
Section 2.03(b); Section
3.10(a); and Section 3.10(b)
Form of Special Servicer Request for Release D-2 Section 1.01 Definition of "Request
for Release"; Section 3.10(b)
Calculation of NOI/Debt Service Coverage E Section 1.01 Definition of "Net
Ratios Operating Income"; Section 3.12(b)
[RESERVED]
Form of Certificate from Holder (Transferor) G-1 Section 5.02(b)
of a Certificate to the Certificate Registrar
Form of Certificate from Proposed Transferee G-2 Section 5.02(b)
of a Certificate to Certificate Registrar
Form of Certificate from Proposed Transferee G-3 Section 5.02(b)
of a Certificate to Certificate Registrar for
non-QIBs
Form of Certificate (to Certificate H Section 5.02(c)
Registrar) by Prospective Transferor that it
is not a Plan or certain other Persons
Form of Transfer Affidavit and Agreement I-1 Section 5.02(d)(i)(B)
regarding Class R-I Certificates
Form of Transferor Certificate regarding I-2 Section 5.02(d)(i)(D)
Class R-I, R-II and R-III Certificates
Form of Notice and Acknowledgment J-1 Section 6.09
Form of Acknowledgment of Proposed Special J-2 Section 6.09
Servicer
Privileged Person Certificate K Section L Section 4.02(a)
3.15(b) Form of Schedule of Holders of each
Class of Regular Certificates
[RESERVED]
Form of CSSA Property File Report M Section 3.12(c)
Form of Comparative Financial Status Report N Section 3.12(b) and 3.12(c)
Form of REO Status Report O Section 3.12(b) and 3.12(c)
Form of Watch List P Section 3.12(b) and 3.12(c)
Form of Delinquent Loan Status Report Q Section 3.12(b) and 3.12(c)
Form of Historical Loan Modification Report R Section 3.12(b) and 3.12(c)
Form of Historical Loss Estimate Report S Section 3.12(b) and 3.12(c)
Form of NOI Adjustment Worksheet T Section 3.12(b) and 3.12(c)
Form of Operating Statement Analysis U Section 3.12(b) and 3.12(c)
Form of Loan Payoff Notification Report V Section 3.12(b) and 3.12(c)
Form of CSSA Loan File Report W Section 4.02(b)
Form of Certificateholder Confirmation X-1 Section 3.15
Certificate
Form of Prospective Purchaser Certificate X-2 Section 3.15
This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of May 1, 1999, among FIRST UNION COMMERCIAL MORTGAGE SECURITIES,
INC., as Depositor, FIRST UNION NATIONAL BANK, as Master Servicer, BANC ONE
MORTGAGE 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.
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 remittance rate equal to
the REMIC I Remittance Rate for such related Mortgage Loan as of the Closing
Date of the Mortgage Loan to which such REMIC I Regular Interest relates; 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 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 Principal Balance for each Class
of the Regular Certificates (other than the Class IO Certificates).
Corresponding
Corresponding Component of Class
Class REMIC II IO Certificates (1) Original Class
Designation Regular Interest (1) Principal Balance
Class A-1 M IO-A-1 $203,500,000
Class A-2 N IO-A-2 $673,747,967
Class B O IO-B $47,260,093
Class C P IO-C $62,028,874
Class D Q IO-D $14,768,779
Class E R IO-E $41,352,582
Class F S IO-F $17,722,535
Class G T IO-G $41,352,582
Class H U IO-H $11,815,024
Class J V IO-J $11,815,023
Class K W IO-K $11,815,024
Class L X IO-L $11,815,023
Class M Y IO-M $11,815,024
Class N Z IO-N $20,676,291
(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:
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.
"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 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, the Special Servicer and
the Trustee on Advances and amounts payable to the Special Servicer in
connection with inspections of Mortgaged Properties required pursuant to
Section 3.12(a), to the extent not otherwise offset by Penalty Interest
otherwise payable to the Special Servicer and received in the Collection
Period during which such inspection related expenses were incurred, as well as
(without duplication) any of the expenses of the Trust Fund that may be
withdrawn (x) pursuant to any of clauses (viii), (ix), (xi), (xii) and (xiii)
of Section 3.05(a) out of general collections on the Mortgage Loans and any
REO Properties on deposit in the Certificate Account or (y) pursuant to clause
(ii) or any of clauses (iv) through (vi) of Section 3.05(b) out of general
collections on the Mortgage Loans and any REO Properties on deposit in the
Distribution Account; provided that for purposes of the allocations
contemplated by Section 4.04 no such expense shall be deemed to have been
incurred by the Trust Fund until such time as the payment thereof is actually
made from the Certificate Account or the Distribution Account, as the case may
be.
"Additional Yield Amount" : With respect to any Distribution Date
and each Class of Sequential Pay Certificates (other than any Excluded Class
thereof) entitled to distributions of principal pursuant to Section 4.01(a) on
such Distribution Date, provided that a Prepayment Premium or Yield
Maintenance Charge was actually collected on a Mortgage Loan or an REO Loan
during the related Collection Period, the product of (a) such Prepayment
Premium or Yield Maintenance Charge, as the case may be, multiplied by (b) a
fraction, which in no event will be greater than one, the numerator of which
is equal to the positive excess, if any, of (i) the Pass-Through Rate for such
Class of Sequential Pay Certificates over (ii) the related Discount Rate, and
the denominator of which is equal to the positive excess, if any, of (i) the
Mortgage Rate for such Mortgage Loan or REO Loan, as the case may be, over
(ii) the related Discount Rate, multiplied by (c) a fraction, the numerator of
which is equal to the amount of principal distributable on such Class of
Sequential Pay Certificates on such Distribution Date pursuant to Section
4.01(a), and the denominator of which is equal to the Principal Distribution
Amount for such Distribution Date.
"Advance" : Any P&I Advance or Servicing Advance.
"Adverse REMIC Event" : As defined in Section 10.01(i).
"Affiliate" : With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" : This Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
"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
Section 225.62 and conducted in accordance with the standards of the American
Appraisal Institute by an Independent Appraiser, which Independent Appraiser
shall be advised to take into account the factors specified in Section
3.18(e), any available environmental, engineering or other third-party
reports, and other factors that a prudent real estate appraiser would
consider.
"Appraisal Reduction Amount" : The excess, if any, of (a) the sum
of, as of the Determination Date immediately succeeding the date on which a
Required Appraisal is obtained (without duplication), (i) the Stated Principal
Balance of the subject Required Appraisal Mortgage Loan, (ii) to the extent
not previously advanced by or on behalf of the Master Servicer or the Trustee,
all unpaid interest on the Required Appraisal Mortgage Loan through the most
recent Due Date prior to such Determination Date at a per annum rate equal 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, the Special Servicer or
the Trustee with respect to such Required Appraisal Mortgage Loan and (v) all
currently due and unpaid real estate taxes and unfunded improvement reserves
(in each case net of any amounts escrowed therefor) and assessments, insurance
premiums, and, if applicable, ground rents in respect of the related Mortgaged
Property over (b) the Required Appraisal Value.
"Appraised Value" : With respect to each Mortgaged Property, the
appraised value thereof based upon the most recent appraisal or update thereof
that is contained in the related Servicing File.
"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 of
the Trust Fund, the scheduled 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 scheduled 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) 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.
"Banc One" : Banc One Mortgage Capital Markets, LLC or its successor
in interest.
"Balloon Mortgage Loan" : Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the 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).
"Book-Entry Certificate" : Any Certificate registered in the name of
the Depository or its nominee.
"Breach" : As defined in Section 2.03(a).
"Business Day" : Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Columbia, Maryland,
Minneapolis, Minnesota, or the cities in which the Corporate Trust Office of
the Trustee (which as of the Closing Date is Columbia, Maryland) or the
offices of the Master Servicer (which as of the Closing Date is Charlotte,
North Carolina) are located, are authorized or obligated by law or executive
order to remain closed.
"CERCLA" : The Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"Certificate" : Any one of the First Union National Bank-Chase
Manhattan Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 1999-C2, as executed by the Certificate Registrar and
authenticated and delivered hereunder by the Authenticating Agent.
"Certificate Account" : The segregated account or accounts created
and maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of
the Trustee in trust for Certificateholders, which shall be entitled "First
Union National Bank, as Master Servicer for NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee, on behalf of and in trust for the registered holders
of First Union National Bank-Chase Manhattan Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 1999-C2".
"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 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 referred to in Sections 7.04 and 11.01 hereof and any
consent, approval or waiver required or permitted to be made by the Majority
Subordinate Certificateholder or the Controlling Class Representative and any
election, removal or replacement of the Special Servicer or the Controlling
Class Representative pursuant to Section 6.09), any Certificate registered in
the name of the Depositor, any Mortgage Loan Seller, the Master Servicer, the
Special Servicer, or the Trustee, as the case may be, or any Certificate
registered in the name of any of its Affiliates, shall be deemed not to be
outstanding, and the Voting Rights to which it is entitled shall not be taken
into account in determining whether the requisite percentage of Voting Rights
necessary to effect any such consent, approval or waiver that relates to it
has been obtained. The Certificate Registrar shall be entitled to request and
rely upon a certificate of the Depositor, the Master Servicer or the Special
Servicer in determining whether a Certificate is registered in the name of an
Affiliate of such Person. All references herein to "Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners as they
may indirectly exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided, however, that
the parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered
in the Certificate Register.
"Chase Manhattan": The Chase Manhattan Bank or its successor in
interest.
"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 a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class A-2 Certificate" : Any one of the Certificates with a "Class
A-2" designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class B Certificate" : Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class C Certificate" : Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class D Certificate" : Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class E Certificate" : Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class F Certificate" : Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a portion of a "regular interest" in REMIC III
for purposes of the REMIC Provisions.
"Class G Certificate" : Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-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 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.
"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.
"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 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" : May 24, 1999.
"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.
"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 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.
"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 (i) greater than
25% of the Original Principal Balance thereof and (ii) equal to or greater
than 1.0% of the sum of the Original Principal Balances of all the
Certificates; provided, however, that if no Class of Sequential Pay
Certificates satisfies clause (b) above, the Controlling Class shall be the
outstanding Class of Certificates (other than the Residual Certificates or the
Class IO Certificates) bearing the latest alphabetical Class designation. With
respect to determining the Controlling Class, the Class A-1 and Class A-2
Certificates shall be deemed a single Class of Certificates.
"Controlling Class Representative" : As defined in Section 3.25.
"Corporate Trust Office" : The principal corporate trust office of
the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of
the execution of this Agreement is located at (i) with respect to maintenance
of the Certificate Register and the transfer and exchange of Certificates, the
office of the Trustee located at Norwest Center, Sixth and Marquette,
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Corporate Trust Services (CMBS)
- First Union National Bank - Chase Manhattan Bank Commercial Mortgage Trust,
Series 1999-C2, and (ii) for all other purposes, 00000 Xxxxxx Xxxx Xxxxxxx,
Xxxxxxxx, Xxxxxxxx 00000-0000, Attn: Corporate Trust Services (CMBS) -- First
Union National Bank - Chase Manhattan Bank Commercial Mortgage Trust, Series
1999-C2.
"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.
"CSSA Loan File Report" : The monthly report in the "CSSA loan
periodic update file" format substantially containing the information called
for therein for the Mortgage Loans, a form of which is attached hereto as
Exhibit W.
"CSSA Property File Report" : The monthly report in the "CSSA
property file" format substantially containing the information called for
therein for each Mortgaged Property, a form of which is attached hereto as
Exhibit M.
"Custodian" : A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, 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 May 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.
"Debt Service Coverage Ratio" : With respect to any Mortgage Loan,
as of any date of determination, the ratio of (x) the annualized Net Operating
Income (before payment of any debt service on such Mortgage Loan) generated by
the related Mortgaged Property during the most recently ended period of not
less than six months and not more than twelve months for which financial
statements, if available (whether or not audited) have been received by or on
behalf of the related Mortgage Loan Seller (prior to the Closing Date) or the
Master Servicer or the Special Servicer (following the Closing Date), to (y)
twelve times the amount of the Periodic Payment in effect for such Mortgage
Loan as of such date of determination.
"Defaulted Mortgage Loan" : A Mortgage Loan (i) that is delinquent
sixty days or more in respect to a Periodic Payment (not including the Balloon
Payment) or is delinquent thirty days or more in respect of its Balloon
Payment, in either case such delinquency to be determined without giving
effect to any grace period permitted by the related Mortgage or Mortgage Note
and without regard to any acceleration of payments under the related Mortgage
and Mortgage Note, or (ii) as to which the Master Servicer or the Special
Servicer has, by written notice to the related Mortgagor, accelerated the
maturity of the indebtedness evidenced by the related Mortgage Note.
"Defeasance Collateral" : With respect to any Defeasance Loan, the
United States Treasury obligations required or permitted to be pledged in lieu
of prepayment pursuant to the terms thereof.
"Defeasance Loan" : Any Mortgage Loan identified as a Defeasance
Loan on the Mortgage Loan Schedule which permits or requires the related
Mortgagor (or permits the holder of such Mortgage Loan to require the related
Mortgagor) to pledge Defeasance Collateral to such holder in lieu of
prepayment.
"Definitive Certificate" : As defined in Section 5.03(a).
"Delinquent Loan Status Report": A report substantially containing
the content described in Exhibit Q attached hereto, setting forth, among other
things, those Mortgage Loans which, as of the close of business on the
Determination Date immediately preceding the preparation of such report, were
delinquent 30-59 days, delinquent 60-89 days, delinquent 90 days or more,
current but constituted Specially Serviced Mortgage Loans, or were in
foreclosure but were not REO Property.
"Depositor" : First Union Commercial Mortgage Securities, Inc. or
its successor in interest.
"Depository" : The Depository Trust Company, or any successor
Depository hereafter named as contemplated by Section 5.03(c). The nominee of
the initial Depository for purposes of registering those Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depository shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Securities Exchange Act of
1934, as amended.
"Depository Participant" : A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date" : With respect to any Distribution Date, the
11th day of the month in which such Distribution Date occurs, or if such 11th
day is not a Business Day, the Business Day immediately 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 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) the product of (x) any Certificate Deferred Interest for such
Distribution Date, multiplied by (y) a fraction, expressed as a decimal, the
numerator of which is the Accrued Certificate Interest in respect of such
Class of Certificates for such Distribution Date, and the denominator of which
is the aggregate Accrued Certificate Interest in respect of all the Classes of
Regular Certificates for such Distribution Date.
"Distribution Account" : The segregated account or accounts created
and maintained by the Paying Agent on behalf of the Trustee pursuant to
Section 3.04(b) which shall be entitled "NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee, in trust for the registered holders of First Union
National Bank-Chase Manhattan Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 1999-C2"
"Distribution Date" : The 15th day of any month, or if such 15th day
is not a Business Day, the Business Day immediately succeeding, commencing on
June 17, 1999; provided, however that the Distribution Date will be no earlier
than the fourth Business Day following the Determination Date in the month in
which such Distribution Date occurs.
"Distribution Date Statement" : As defined in Section 4.02(a).
"Document Defect" : As defined in Section 2.03(a).
"Due Date" : With respect to (i) any Mortgage Loan on or prior to
its Stated Maturity Date, the day of the month set forth in the related
Mortgage Note on which each Periodic Payment on such Mortgage Loan is
scheduled to be first due; (ii) any Mortgage Loan after its Stated Maturity
Date, the day of the month set forth in the related Mortgage Note on which
each Periodic Payment on such Mortgage Loan had been scheduled to be first
due; and (iii) any REO Loan, the day of the month set forth in the related
Mortgage Note on which each Periodic Payment on the related Mortgage Loan had
been scheduled to be first due.
"Eligible Account" : Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, and with respect
to deposits held for 30 days or more in such account the (a) long-term deposit
or unsecured debt obligations of which are rated "AA-" by Fitch (if then rated
by Fitch) and "A2" by Moody's (if then rated by Moody's) (or, with respect to
any such Rating Agency, such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the Certificates, as
evidenced in writing by the applicable Rating Agency), at any time such funds
are on deposit therein, or with respect to deposits held for less than 30 days
in such account the (b) short-term deposits of which are rated P-1 by Moody's
(if then rated by Moody's) and "F-1+" by Fitch (if then rated by Fitch) (or,
with respect to any such Rating Agency, such lower rating as will not result
in qualification, downgrading or withdrawal of the ratings then assigned to
the Certificates) as evidenced in writing by the applicable Rating Agency at
any time such funds are on deposit therein, or (ii) a segregated trust account
or accounts maintained with a federal or state 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 Section 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 for which an escrow or reserve
has been created in respect of the related Mortgaged Property, including
amounts for deposit to any reserve account.
"Event of Default" : One or more of the events described in Section
7.01(a).
"Exchange Act" : Securities Exchange Act of 1934, as amended.
"Excluded Class" : Any Class of Sequential Pay Certificates other
than the Class A-1 Certificates, Class A-2 Certificates, Class B Certificates,
Class C Certificates, Class D Certificates, Class E Certificates and Class F
Certificates.
"FDIC" : Federal Deposit Insurance Corporation or any successor.
"FHLMC" : Federal Home Loan Mortgage Corporation or any successor.
"Final Recovery Determination" : A determination by the Special
Servicer with respect to any Defaulted Mortgage Loan or REO Property (other
than a Mortgage Loan or REO Property, as the case may be, that was purchased
by any of the Mortgage Loan Sellers, pursuant to the related Mortgage Loan
Purchase Agreement, by the Majority Subordinate Certificateholder pursuant to
Section 3.18(b), by the Master Servicer or the Special Servicer pursuant to
Section 3.18(c) or by the Depositor, the Master Servicer, the Special
Servicer, an Underwriter or the Majority Subordinate Certificateholder
pursuant to Section 9.01) that there has been a recovery of all Insurance
Proceeds, Liquidation Proceeds and other payments or recoveries that the
Special Servicer has determined, in accordance with the Servicing Standard,
will be ultimately recoverable.
"First Union Capital Markets" : First Union Capital Markets Corp. or
its successor in interest.
"Fitch" : Fitch IBCA, Inc., or its successor in interest. If neither
such rating agency nor any successor remains in existence, "Fitch" shall be
deemed to refer to such other nationally recognized statistical rating agency
or other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, the Master Servicer and the Special
Servicer, and specific ratings of Fitch herein referenced shall be deemed to
refer to the equivalent ratings of the party so designated.
"FNMA" : Federal National Mortgage Association or any successor.
"Grantor Trust" : That certain "grantor trust" (within the meaning
of the Grantor Trust Provisions), the assets of which are the Grantor Trust
Assets.
"Grantor Trust Assets" : Any Additional Interest collected 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 hereafter enacted,
and specifically including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls ("PCBs"), radon gas,
petroleum and petroleum products and urea formaldehyde.
"Historical Loan Modification Report" : A report substantially
containing the information described in Exhibit R attached hereto, setting
forth, among other things, those Mortgage Loans which, as of the close of
business on the Determination Date immediately preceding the preparation of
such report, have been modified pursuant to this Agreement (i) during the
related Collection Period and (ii) since the Cut-off Date, showing the
original and the revised terms thereof.
"Historical Loss Estimate Report" : A report substantially
containing the information described in Exhibit S attached hereto, setting
forth, among other things, as of the close of business on the Determination
Date immediately preceding the preparation of such report, (i) the aggregate
amount of Liquidation Proceeds and expenses relating to each Final Recovery
Determination made, both during the related Collection Period and
historically, and (ii) the amount of Realized Losses occurring during the
related Collection Period, set forth on a Mortgage Loan-by-Mortgage Loan
basis.
"Holder" : A Certificateholder.
"HUD-Approved Servicer" : A servicer approved by the Secretary of
Housing and Urban Development pursuant to Section 207 of the National Housing
Act.
"Impound Reserve" : As defined in Section 3.16(c) hereof.
"Independent" : When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the Master
Servicer, the Special Servicer, the Controlling Class Representative, the
Trustee and any and all Affiliates thereof, (ii) does not have any direct
financial interest in or any material indirect financial interest in any of
the Depositor, the Master Servicer, the Special Servicer, the Controlling
Class Representative, the Trustee or any Affiliate thereof, and (iii) is not
connected with the Depositor, the Master Servicer, the Controlling Class
Representative, the Special Servicer, the Trustee or any Affiliate thereof as
an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions; provided, however, that a Person shall
not fail to be Independent of the Depositor, the Master Servicer, the
Controlling Class Representative, the Special Servicer, the Trustee or any
Affiliate thereof merely because such Person is the beneficial owner of 1% or
less of any class of securities issued by the Depositor, the Master Servicer,
the Special Servicer, the Controlling Class Representative, the Trustee or any
Affiliate thereof, as the case may be.
"Independent Appraiser" : An Independent professional real estate
appraiser who is a member in good standing of the Appraisal Institute, and, if
the State in which the subject Mortgaged Property is located certifies or
licenses appraisers, certified or licensed in such State, and in each such
case, who has a minimum of five years experience in the subject property type
and market.
"Independent Contractor" : Any Person that would be an "independent
contractor" with respect to REMIC I 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.
"Insured Balloon Loan" : Each Balloon Mortgage Loan that is insured
by an RVI Policy and identified as an Insured Balloon Loan on the Mortgage
Loan Schedule.
"Insured Event" : With respect to a Lease Enhancement Policy and an
RVI Policy, any occurrence, condition or event that gives rise or with the
passage of time will give rise to a claim under the Lease Enhancement Policy
or RVI Policy, as the case may be.
"Insurance Policy" : With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance
policy that is maintained from time to time in respect of such Mortgage Loan
or the related Mortgaged Property.
"Insurance Proceeds" : Proceeds paid under any Insurance Policy, to
the extent such proceeds are not applied to 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.
"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-Chase Manhattan Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 1999-C2".
"Interest Reserve Amount" : With respect to each Interest Reserve
Loan and each Distribution Date that occurs during February of each year and
during January of each year that is not a leap year, an amount equal to one
day's interest at the related Mortgage Rate on the related Stated Principal
Balance as of the Due Date in the month in which such Distribution Date occurs
(but prior to the application of any amounts owed on such Due Date), to the
extent a Periodic Payment or P&I Advance is made in respect thereof for such
Due Date as of the related P&I Advance Date.
"Interest Reserve Loan" : Each Mortgage Loan that is an Actual/360
Mortgage Loan except with respect to two Actual/360 Mortgage Loans (control
numbers 3 and 70) for the period during which such Mortgage Loans provide for
interest payments to be made in equal monthly installments.
"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.
"X.X. Xxxxxx": X.X. Xxxxxx Securities Inc. or its successor in
interest.
"Late Collections" : With respect to any Mortgage Loan, all amounts
received thereon during any Collection Period, other than Penalty Interest,
whether as payments, Insurance Proceeds, Liquidation Proceeds or otherwise,
which represent late collections of the principal and/or interest portions of
a Scheduled Payment (other than a Balloon Payment) or an Assumed Scheduled
Payment in respect of such Mortgage Loan due or deemed due on a Due Date in a
previous Collection Period , and not previously recovered. With respect to any
REO Loan, all amounts received in connection with the related REO Property
during any Collection Period, whether as Insurance Proceeds, Liquidation
Proceeds, REO Revenues or otherwise, which represent late collections of the
principal and/or interest portions of a Scheduled Payment (other than a
Balloon Payment) or an Assumed Scheduled Payment in respect of the predecessor
Mortgage Loan or of an Assumed Scheduled Payment in respect of such REO Loan
due or deemed due on a Due Date in a previous Collection Period and not
previously recovered.
"Lease Enhancement Policy" : With respect to a Credit Lease Loan,
any non-cancelable credit lease enhancement insurance policy that insures
against certain losses arising out of casualty and/or condemnation of the
related Mortgaged Property.
"Lease Enhancement Policy Insurer" : With respect to any Lease
Enhancement Policy, Chubb Custom Insurance Company together with any assignee,
successor or subsequent insurer thereunder.
"Liquidation Event" : With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made with 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 Payoff Notification Report" : A report substantially
containing the information described in Exhibit V attached hereto, and setting
forth for each Mortgage Loan where notice of anticipated payoff has been
received as of the Determination Date immediately preceding the preparation of
such report, among other things, the control number, the property name, the
amount of principal expected to be paid, the expected date of payment and the
estimated amount of Yield Maintenance Charge or Prepayment Premium due.
"Loan-to-Value Ratio" : With respect to any Mortgage Loan, as of any
date of determination, a fraction, expressed as a percentage, the numerator of
which is the then current principal amount of such Mortgage Loan, and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"Lockout Period" : With respect to any Mortgage Note that prohibits
the Mortgagor from prepaying such Mortgage Loan until a date specified in such
Mortgage Note, the period from the Closing Date until the such specified date.
"Majority Subordinate Certificateholder" : As of any date of
determination, any single Holder of Certificates entitled to greater than 50%
of the Voting Rights allocated to the Controlling Class; provided, however,
that if there is no single Holder of Certificates entitled to greater than 50%
of the Voting Rights allocated to such Class, then the Majority Subordinate
Certificateholder shall be the single Holder of Certificates with the largest
percentage of Voting Rights allocated to such Class. With respect to
determining the Majority Subordinate Certificateholder, the Class A-1
Certificates and the Class A-2 Certificates shall be deemed to be a single
Class of Certificates, with such Voting Rights allocated among the Holders of
Certificates of such Classes in proportion to the respective Certificate
Principal Balances of such Certificates as of such date of determination.
"Master Servicer" : First Union National Bank, its successor in
interest (including the Trustee as successor pursuant to Section 7.02), or any
successor master servicer appointed as herein provided.
"Master Servicing Fee" : With respect to each Mortgage Loan and REO
Loan, the fee payable to the Master Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate" : With respect to each Mortgage Loan,
the percentage set forth under the column "Master Servicing Fee Rate" on the
Mortgage Loan Schedule that corresponds to such Mortgage Loan.
"Moody's" : Xxxxx'x Investors Service, Inc. or its successor in
interest. If neither such rating agency nor any successor remains in
existence, "Moody's" shall be deemed to refer to such other nationally
recognized statistical rating agency or other comparable Person designated by
the Depositor, notice of which designation shall be given to the Trustee, the
Master Servicer and the Special Servicer, and specific ratings of Xxxxx'x
Investors Service, Inc. herein referenced shall be deemed to refer to the
equivalent ratings of the party so designated.
"Mortgage" : With respect to any Mortgage Loan, the mortgage, deed
of trust, deed to secure debt or similar instrument that secures the Mortgage
Note and creates a lien on the 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.
"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-Chase
Manhattan Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 1999-C2 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-Chase Manhattan Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series
1999-C2;
(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-Chase Manhattan Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 1999-C2;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances
where the terms or provisions of the Mortgage or Mortgage
Note have been consolidated or modified or the Mortgage
Loan has been assumed;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been
issued, an original or copy of an irrevocable, binding
commitment to issue such title insurance policy; and
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing satisfactory to the Trustee of any prior
UCC Financing Statements in favor of the originator of such
Mortgage Loan or in favor of any assignee prior to the
Trustee (but only to the extent the Mortgage Loan Seller
had possession of such UCC Financing Statements prior to
the Closing Date) and, if there is an effective UCC
Financing Statement and continuation statements in favor of
the Mortgage Loan Seller on record with the applicable
public office for UCC Financing Statements, an original
UCC-2 or UCC-3 assignment, as appropriate, in form suitable
for filing, as appropriate, in favor of NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, as trustee for the
registered holders of First Union National Bank-Chase
Manhattan Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 1999-C2; and
(ix) an original or copy of any Ground Lease, any Credit Lease
and any Lease Enhancement Policy, RVI Policy or Guaranty.
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or the Custodian for documents described in
clauses (vi) and (ix) (solely with respect to any Guaranty) of this
definition, shall be deemed to include only such documents to the extent the
Trustee or Custodian has actual knowledge of their existence.
"Mortgage Loan" : Each of the mortgage loans transferred and
assigned to the Trust Fund pursuant to Section 2.01 and listed on the Mortgage
Loan Schedule and from time to time held in the Trust Fund. As used herein,
the term "Mortgage Loan" includes the related Mortgage Note, Mortgage, any
Lease Enhancement Policy, any RVI Policy and other security documents
contained in the related Mortgage File.
"Mortgage Loan Purchase Agreements" : Those certain mortgage loan
purchase agreements, each dated as of May 1, 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;
(xv) whether such Mortgage Loan is insured by a Lease
Enhancement Policy or RVI Policy;
(xvi) the debt service coverage ratio and loan to value ratio
(calculated in each case as set forth in the Prospectus
Supplement);
(xvii) whether such Mortgage Loan is cross-defaulted with any
other Mortgage Loan;
(xviii) whether such Mortgage Loan is a Defeasance Loan,
Semi-Annual Mortgage Loan, or Insured Balloon Loan;
(xix) whether the Mortgage Loan is secured by a letter of credit;
(xx) whether such Mortgage Loan is an Interest Reserve Loan;
(xxi) whether payments on such Mortgage Loan are made to a
lock-box and
(xxii) 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 Chase Manhattan 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 or the annualized rate described in clause (i) above
determined without regard to the passage of such Stated Maturity Date, but
giving effect to any modification thereof as contemplated by Section 3.20; and
(iii) any REO Loan, the annualized rate described in clause (i) or (ii), as
applicable, above determined as if the predecessor Mortgage Loan had remained
outstanding, 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 Default Interest or Excess Interest) in respect
of such Mortgage Loan during such one-month period at the related Mortgage
Rate; provided, however, that with respect to each Interest Reserve Loan, the
Mortgage Rate for the one-month period (A) preceding the Due Dates that occur
in January and February in any year which is not a leap year or preceding the
Due Date that occurs in February in any year which is a leap year, and (B)
preceding the Due Date in March, will be the per annum rate stated in the
related Mortgage Note.
"Mortgaged Property" : The property subject to the lien of a
Mortgage.
"Mortgagor" : The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged
Property and assumed the obligations of the original obligor under the
Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall" : With respect to any
Distribution Date, the 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 and the applicable Master
Servicing Fee Rate.
"Net Operating Income or NOI" : As defined in and determined in
accordance with the provisions of Exhibit E attached hereto.
"New Lease": Any lease of REO Property entered into 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 CSSA 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 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.
"Non-United States Person": Any Person other than a United States
Person.
"Officers' Certificate": A certificate signed by a Servicing Officer
of the Master Servicer or the Special Servicer, as the case may be, or by a
Responsible Officer of the Trustee.
"Operating Statement Analysis": With respect to each Mortgage Loan
and REO Mortgaged Property, a report prepared by the Special Servicer with
respect to each Specially Serviced Mortgage Loan and REO Loan and by the
Master Servicer with respect to each other Mortgage Loan substantially
containing the content described in Exhibit U attached hereto and conforming
to the most recent CSSA 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 Notional Amount": $1,181,529,534.
"Original 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.
"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, 6.36%
per annum;
(ii) the Class A-2 Certificates for any Distribution Date, 6.65%
per annum;
(iii) the Class B Certificates for any Distribution Date, 6.80%
per annum;
(iv) the Class C Certificates for any Distribution Date, the
lesser of (A) 6.94% per annum and the Weighted Average
REMIC I Remittance Rate for such Distribution Date;
(v) the Class D Certificates for any Distribution Date, , the
lesser of (A) 7.06% per annum and 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 minus 0.10%;
(vii) the Class F Certificates for any Distribution Date, the
Weighted Average REMIC I Remittance Rate for such
Distribution Date minus 0.10%;
(viii) the Class G Certificates for any Distribution Date, 5.95 %
per annum;
(ix) the Class H Certificates for any Distribution Date, 5.95 %
per annum;
(x) the Class J Certificates for any Distribution Date, 5.95 %
per annum;
(xi) the Class K Certificates for any Distribution Date, 5.95 %
per annum;
(xii) the Class L Certificates for any Distribution Date, 5.95 %
per annum;
(xiii) the Class M Certificates for any Distribution Date, 5.95%
per annum;
(xiv) the Class N Certificates for any Distribution Date, 5.95 %
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
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, or
Prepayment Premiums or Yield Maintenance Charges, that represent penalty
interest (arising out of a default) in excess of interest on the Stated
Principal Balance of such Mortgage Loan (or successor REO Loan) accrued at the
related Mortgage Rate.
"Percentage Interest": With respect to any Regular Certificate, the
portion of the relevant Class evidenced by such Certificate, expressed as a
percentage, the numerator of which is the Certificate Principal Balance or
Certificate Notional Amount, as the case may be, of such Certificate as of the
Closing Date, as specified on the face thereof, and the denominator of which
is the Original Principal Balance or Original Notional Amount, as the case may
be, of the relevant Class. With respect to a Residual Certificate, the
percentage interest in distributions to be made with respect to the relevant
Class, as stated on the face of such Certificate.
"Periodic Payment: With respect to any Mortgage Loan as of any Due
Date, the scheduled payment of principal and/or interest on such Mortgage
Loan, including any Balloon Payment, that is actually payable by the related
Mortgagor from time to time under the terms of the related Mortgage Note (as
such terms may be changed or modified in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the Special Servicer
pursuant to Section 3.20).
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Trustee
if otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United
States or any agency or instrumentality thereof (having
original maturities of not more than 365 days), provided
such obligations are backed by the full faith and credit of
the United States. Such obligations must be limited to
those instruments that have a predetermined fixed dollar
amount of principal due at maturity that cannot vary or
change. 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 Moody's and Fitch or such lower
rating as will not result in qualification, downgrading or
withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the Rating
Agencies. In addition, any such item must not have an "r"
highlighter affixed to its rating by Standard & Poor's, and
its terms must have a predetermined fixed dollar amount of
principal due at maturity that cannot very or change.
Interest may either be fixed or variable. If such interest
is variable, interest must be tied to a single interest
rate index plus a single fixed spread (if any), and move
proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company organized
under the laws of the United States or any state thereof
(having original maturities of not more than 365 days), the
short term obligations of which are rated in the highest
rating categories of each of Moody's and Fitch or such
lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to
the Certificates, as evidenced in writing by the Rating
Agencies. In addition, its terms should have a
predetermined fixed dollar amount of principal due at
maturity that cannot vary or change. Interest may either be
fixed or variable. If such interest is variable, interest
must be tied to a single interest rate index plus a single
fixed spread (if any), and move proportionately with that
index;
(iv) commercial paper (having original maturities of not more
than 365 days) of any corporation incorporated under the
laws of the United States or any state thereof (or if not
so incorporated, the commercial paper is United States
Dollar denominated and amounts payable thereunder are not
subject to any withholding imposed by any non-United States
jurisdiction) which is rated in the highest rating category
of each of Moody's and Fitch or such lower rating as will
not result in qualification, downgrading or withdrawal of
the ratings then assigned to the Certificates, as evidenced
in writing by the Rating Agencies. The commercial paper by
its terms must have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change.
Interest may either by fixed or variable. If such interest
is variable, interest must be tied to a single interest
rate index plus a single fixed spread (if any), and move
proportionately with that index;
(v) units of money market funds rated in the highest rating
category of Moody's and Fitch (or such lower rating as will
not result in qualification, downgrading or withdrawal of
the ratings then assigned to the Certificates, as evidenced
in writing by the Rating Agencies) and which seeks to
maintain a constant net asset value; and
(vi) any other obligation or security acceptable to each Rating
Agency, evidence of which acceptability shall be provided
in writing by each Rating Agency to the Master Servicer,
the Special Servicer and the Trustee;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; and (2) no investment described hereunder may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity.
"Permitted Transferee": Any Transferee of a Residual Certificate
other than a Disqualified Organization or Non-United States Person.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Plurality Residual Certificateholder": As to any taxable year of
REMIC I, REMIC II 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 Lease Enhancement
Policy or 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), 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
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 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 or interest therein, any Rating
Agency, any Underwriter or any party hereto.
"Proposed Successor": As defined in Section 6.04.
"Prospectus": The prospectus dated May 11, 1999, as supplemented by
the Prospectus Supplement, relating to the Registered Certificates.
"Prospectus Supplement": The final prospectus supplement dated May
11, 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, (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 other
Additional Trust Fund Expenses in respect of such Mortgage Loan (except that
Additional Trust Fund Expenses in respect of such Mortgage Loan allocable to
any Class of Certificates owned by the Majority Subordinate Certificateholder
shall not be included in the Purchase Price with respect to a purchase made by
the Majority Subordinate Certificateholder pursuant to Section 3.18(b));
provided, that the Purchase Price shall not be reduced by any outstanding P&I
Advance.
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the relevant
jurisdiction (i) with a minimum claims paying ability rating of at least "A"
by Fitch (or if not rated by Fitch then "A-IX" by A.M. Best) and "A2" by
Xxxxx'x (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 Fitch
rating, if not rated by Fitch, then "A-IX" by A.M. Best), but in no event
lower than and "A" by Fitch (or if not rated by Fitch then "A-IX" by A.M.
Best) and "A2" by Xxxxx'x, or, in the case of clauses (i) and (ii), such other
rating as each Rating Agency shall have confirmed in writing will not cause
such Rating Agency to downgrade, qualify or withdraw the then-current rating
assigned to any of the Certificates that are then currently being rated by
such Rating Agency.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding Stated Principal Balance,
after application of all scheduled payments of principal and interest due
during or prior to the month of substitution, not in excess of the Stated
Principal Balance of the deleted Mortgage Loan as of the Due Date in the
calendar month during which the substitution occurs; (ii) have a Mortgage Rate
not less than the Mortgage Rate of the deleted Mortgage Loan; (iii) have the
same Due Date as the deleted Mortgage Loan; (iv) accrue interest on the same
basis as the deleted Mortgage Loan (for example, on the basis of a 360-day
year consisting of twelve 30-day months); (v) have a remaining term to stated
maturity not greater than, and not more than two years less than, the
remaining term to stated maturity of the deleted Mortgage Loan; (vi) have an
original Loan-to-Value Ratio not higher than that of the deleted Mortgage Loan
and a current Loan-to-Value Ratio not higher than the then current
Loan-to-Value Ratio of the deleted Mortgage Loan; (vii) comply as of the date
of substitution with all of the representations and warranties set forth in
the Mortgage Loan Purchase Agreement; (viii) have an Environmental Assessment
that indicates no adverse environmental conditions with respect to the related
Mortgaged Property and which will be delivered as a part of the related
Mortgage File; (ix) have an original Debt Service Coverage Ratio of not less
than the original Debt Service Coverage Ratio of the deleted Mortgage Loan and
a current Debt Service Coverage Ratio of not less than the current Debt
Service Coverage Ratio of the deleted Mortgage Loan; (x) at the Trustee's
request, 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, to the Holders of Certificates
representing a majority of the Voting Rights allocated to the Controlling
Class), in its, or their, sole discretion; 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. It is understood and agreed that
the Controlling Class Representative (or, if no Controlling Class
Representative is then serving, the Holders of Certificates representing a
majority of the Voting Rights assigned to the Controlling Class) could find a
prospective Qualified Substitute Mortgage Loan unacceptable for any reason or
no reason whatsoever.
"Rated Final Distribution Date": The Distribution Date in June 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 Xxxxx'x and Fitch.
"Realized Loss": With respect to: (1) each defaulted Mortgage Loan
as to which a Final Recovery Determination has been made, or with respect to
any successor REO Loan as to which a Final Recovery Determination has been
made as to the related REO Property, an amount (not less than zero) equal to
(a) the unpaid principal balance of such Mortgage Loan or REO Loan, as the
case may be, as of the commencement of the Collection Period in which the
Final Recovery Determination was made, plus (b) without taking into account
the amount described in subclause (1)(d) of this definition, all accrued but
unpaid interest on such Mortgage Loan or such REO Loan, as the case may be, at
the related Mortgage Rate to but not including the Due Date in the Collection
Period in which the Final Recovery Determination was made (exclusive of any
portion thereof that constitutes default interest in excess of the Mortgage
Rate, Additional Interest, Prepayment Premiums or Yield Maintenance Charges),
plus (c) any related unreimbursed Servicing Advances as of the commencement of
the Collection Period in which the Final Recovery Determination was made,
together with any new related Servicing Advances made during such Collection
Period, minus (d) all payments and proceeds, if any, received in respect of
such Mortgage Loan or the REO Property that relates to such REO Loan, as the
case may be, during the Collection Period in which such Final Recovery
Determination was made; (2) each defaulted Mortgage Loan as to which any
portion of the principal or previously accrued interest (other than Additional
Interest and Penalty Interest) payable thereunder was canceled in connection
with a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Mortgage Loan granted or agreed to
by the Special Servicer pursuant to Section 3.20, the amount of such principal
and/or interest so canceled; and (3) each Mortgage Loan as to which the
Mortgage Rate thereon has been permanently reduced and not recaptured for any
period in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment of such Mortgage Loan
granted or agreed to by the Special Servicer pursuant to Section 3.20, the
amount of the consequent reduction in the interest portion of each successive
Periodic Payment due thereon (each such Realized Loss shall be deemed to have
been incurred on the Due Date for each affected Periodic Payment).
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Registered Certificate": Any Class A-1, Class A-2, Class B, Class
C, Class D, Class E or Class IO Certificate.
"Regular Certificate": Any REMIC III Certificate other than a Class
R-III Certificate.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and on
P&I Advances in accordance with Section 4.03(d), which rate per annum is equal
to the Prime Rate.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC Accrued Interest": With respect to:
(1) any REMIC I Regular Interest for any Distribution Date, one
month's interest at the REMIC I Remittance Rate applicable to such REMIC
I Regular Interest as of the commencement of the Collection Period for
such Distribution Date, accrued on the REMIC Principal Balance of such
REMIC I Regular Interest outstanding immediately prior to such
Distribution Date and, to the extent permitted under applicable law, also
on any REMIC Distributable Interest in respect of such REMIC I Regular
Interest from prior Distribution Dates that was not previously deemed
paid;
(2) any REMIC II Regular Interest for any Distribution Date, one
month's interest at the REMIC II Remittance Rate applicable to such REMIC
II Regular Interest as of the commencement of the Collection Period for
such Distribution Date, accrued on the REMIC Principal Balance of such
REMIC II Regular Interest outstanding immediately prior to such
Distribution Date and, to the extent permitted under applicable law, also
on any REMIC Distributable Interest in respect of such REMIC II Regular
Interest from prior Distribution Dates that was not previously deemed
paid;
(3) any REMIC III P&I Regular Interest for any Distribution Date,
one month's interest at the REMIC III Remittance Rate applicable to such
REMIC III P&I Regular Interest as of the commencement of the Collection
Period for such Distribution Date, accrued on the REMIC Principal Balance
of such REMIC III P&I Regular Interest outstanding immediately prior to
such Distribution Date and, to the extent permitted under applicable law,
also on any REMIC Distributable Interest in respect of such REMIC III P&I
Regular Interest from prior Distribution Dates that was not previously
deemed paid;
(4) any REMIC III Component for any Distribution Date, one month's
interest at the REMIC III Remittance Rate applicable to such REMIC III
Component as of the commencement of the Collection Period for such
Distribution Date, accrued on the REMIC III Component Notional Amount of
such REMIC III Component outstanding immediately prior to such
Distribution Date and, to the extent permitted under applicable law, also
on any REMIC Distributable Interest in respect of such REMIC III
Component from prior Distribution Dates that was not previously deemed
paid;
"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;
(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 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 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 and (ii) the Trustee
Fee Rate; provided that, in the case of an Interest Reserve Loan, the amount
of the numerator for the fraction described in clause (2)(a) above shall (x)
for the Distribution Date that occurs during February of each year or during
January of each year that is not a leap year, be reduced by the related
Interest Reserve Amount that is to be transferred from the Certificate Account
to the Interest Reserve Account on such Distribution Date and (y) for the
Distribution Date that occurs during March of each year, be equal to thirty
days' interest at the related Mortgage Rate in effect as of the Closing Date.
"REMIC II": The segregated pool of assets consisting of all of the
REMIC I Regular Interests conveyed in trust to the Trustee for the benefit of
REMIC III, as holder of the REMIC II Regular Interests, and the Holders of the
Class R-II Certificates pursuant to Section 2.06, with respect to which a
separate REMIC election is to be made.
"REMIC II Regular Interest": Any of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as
a "regular interest" in REMIC II. Each REMIC II Regular Interest shall accrue
interest at the REMIC II Remittance Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial 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 Banc One,
as Special Servicer, in trust for registered holders of First Union National
Bank-Chase Manhattan Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2".
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09.
"REO Disposition": The sale or other disposition of any REO Property
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed
to be outstanding for so long as the related REO Property remains part of
REMIC I 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 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 Section 225.62 and conducted in accordance with the standards of
the Appraisal Institute.
"Required Appraisal Mortgage Loan": Each Mortgage Loan (i) that is
ninety (90) days or more delinquent in respect of any Periodic Payments, (ii)
that becomes an REO Loan, (iii) that has been modified by the Special Servicer
to reduce the amount of any Periodic Payment (other than a Balloon Payment),
(iv) with respect to which a receiver in bankruptcy is appointed and continues
in such capacity in respect of the related Mortgaged Property, (v) with
respect to which a Mortgagor declares bankruptcy or with respect to which the
related Mortgagor is subject to a bankruptcy proceeding or (vi) with respect
to which any Balloon Payment on such Mortgage Loan has not been paid by its
scheduled maturity date. Any Required Appraisal Mortgage Loan shall cease to
be such at such time as it has become a Corrected Mortgage Loan.
"Required Appraisal Value": An amount equal to 90% of the Appraised
Value (net of any prior liens and estimated liquidation expenses) of the
Mortgaged Property related to the subject Required Appraisal Mortgage Loan as
determined by a Required Appraisal; and provided further that for purposes of
determining any Appraisal Reduction Amount in respect of such Required
Appraisal Mortgage Loan, such Appraisal Reduction Amount shall be amended
annually to reflect the Required Appraisal Value determined pursuant to any
Required Appraisal or letter update of a Required Appraisal conducted
subsequent to the original Required Appraisal performed pursuant to Section
3.09(a).
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(f).
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Mortgagor to be held in escrow by or on behalf of the
mortgagee representing reserves for environmental remediation, repairs and/or
capital improvements to the related Mortgaged Property.
"Residual Certificate": A Class R-I, Class R-II 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 that is payable on the
immediately succeeding Due Date for such Semi-Annual Mortgage Loan (net of
related Servicing Fees and net of the Swap Fee).
"Semi-Annual Loan Scheduled Interest Payment": With respect to any
Semi-Annual Mortgage Loan, that portion of the scheduled semi-annual payment
of principal and/or interest (other than Additional Interest) on such
Semi-Annual Mortgage Loan that relates to interest and that is payable by the
related Mortgagor under the related Mortgage Note.
"Semi-Annual Loan Swap Agreement": The swap transaction confirmation
dated as of May 1, 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), (b) the preservation, insurance, restoration, protection and
management of a Mortgaged Property, including the cost of any "forced placed"
insurance policy purchased by the Master Servicer to the extent such cost is
allocable to a particular Mortgaged Property that the Master Servicer or the
Special Servicer is required to cause to be insured pursuant to Section
3.07(a), (c) obtaining any Insurance Proceeds or any Liquidation Proceeds of
the nature described in clauses (i)-(v) of the definition of "Liquidation
Proceeds," (d) any enforcement or judicial proceedings with respect to a
Mortgaged Property, including, without limitation, foreclosures, (e) any
Required Appraisal or other appraisal expressly required or permitted to be
obtained hereunder, (f) the operation, management, maintenance and liquidation
of any REO Property, including, without limitation, appraisals and (g)
compliance with the obligations of the Master Servicer or the Trustee set
forth in Section 2.03(a) or (b). Notwithstanding anything to the contrary,
"Servicing Advances" shall not include allocable overhead of the Master
Servicer or the Special Servicer, such as costs for office space, office
equipment, supplies and related expenses, employee salaries and related
expenses and similar internal costs and expenses or costs and expenses
incurred by any such party in connection with its purchase of a Mortgage Loan
or REO Property.
"Servicing Fees": With respect to each Mortgage Loan and REO Loan,
the Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to be
part of the related Mortgage File) relating to the origination and servicing
of any Mortgage Loan, including appraisals, surveys, engineering reports and
environmental reports.
"Servicing Officer": Any officer or employee of the Master Servicer
or the Special Servicer involved in, or responsible for, the administration
and servicing of the Mortgage Loans, whose name and specimen signature appear
on a list of servicing officers furnished by such party to the Trustee and the
Depositor on the Closing Date, as such list may be amended from time to time.
"Servicing Standard": With respect to the Master Servicer or the
Special Servicer, the servicing and administration of the Mortgage Loans for
which it is responsible hereunder (a) in the same manner in which, and with
the same care, skill, prudence and diligence with which, the Master Servicer
or the Special Servicer, as the case may be, generally services and
administers similar mortgage loans with similar borrowers (i) for other
third-parties, giving due consideration to customary and usual standards of
practice of prudent institutional commercial mortgage lenders servicing their
own loans or (ii) held in its own portfolio, whichever standard is higher, (b)
with a view to the maximization of the recovery on such Mortgage Loan on a net
present value basis, and (c) without regard to (i) any relationship that the
Master Servicer or the Special Servicer, as the case may be, or any Affiliate
thereof may have with the related Mortgagor, the Depositor, any Mortgage Loan
Seller or any other party to the transaction; (ii) the ownership of any
Certificate by the Master Servicer or the Special Servicer, as the case may
be, or by any Affiliate thereof; (iii) the right of the Master Servicer or the
Special Servicer, as the case may be, to receive compensation or other fees
for its services rendered pursuant to this Agreement; (iv) the obligations of
the Master Servicer or the Special Servicer, as the case may be, to make
Advances; and (v) the ownership, servicing or management for others of any
other mortgage loans or mortgaged property.
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through (g) of the
definition of "Specially Serviced Mortgage Loan".
"Single Certificate": For purposes of Section 4.02, a hypothetical
Certificate of any Class of Regular Certificates evidencing a $1,000
denomination.
"Special Servicer": Banc One Mortgage Capital Markets, LLC., or any
successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, the fee designated as such and payable to the
Special Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.25% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which
any of the following events have occurred:
(a) the related Mortgagor shall have failed to make any Periodic
Payment, and such failure has continued unremedied for 60 days
(or, in the case of a Balloon Payment, if the Master Servicer
receives written evidence from an institutional lender of such
lender's binding commitment to refinance such Mortgage Loan and
the related Mortgagor continues to make Periodic Payments of
principal and interest in an amount at least equal to the
Periodic Payment due on the Due Date immediately preceding the
scheduled maturity date, such longer period (not to exceed 120
days) within which such refinancing is expected to occur); or
(b) the Master Servicer shall have determined, in its good faith
reasonable judgment, based on communications with the related
Mortgagor, that a default in making a Periodic Payment is
likely to occur within 30 days and is likely to remain
unremedied for at least 60 days (or, in the case of a Balloon
Payment, if the Master Servicer has received written evidence
from an institutional lender of such lender's binding
commitment to refinance such Mortgage Loan and if the Master
Servicer reasonably expects the related Mortgagor to continue
to make Periodic Payments of principal and interest in an
amount at least equal to the Periodic Payment due on the Due
Date immediately preceding the scheduled maturity date, such
longer period (not to exceed 120 days) within which such
refinancing is expected to occur); or
(c) there shall have occurred a default (other than as described in
clause (a) above) that materially impairs the value of the
Mortgaged Property as security for the Mortgage Loan or
otherwise materially adversely affects the interests of
Certificateholders and that continues unremedied for the
applicable grace period under the terms of the Mortgage Loan
(or, if no grace period is specified, for 60 days); or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy,
insolvency or similar law or the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the related Mortgagor
and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(e) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property; or
(f) the related Mortgagor shall admit in writing its inability to
pay its debts generally as they become due, file a petition to
take advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors,
or voluntarily suspend payment of its obligations; or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect
to the related Mortgaged Property;
provided, however, that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan:
(w) with respect to the circumstances described in clause (a)
above, when the related Mortgagor has made three consecutive
full and timely Periodic Payments (or in the case of a
Semi-Annual Mortgage Loan, two consecutive full and timely
Periodic Payments) under the terms of such Mortgage Loan (as
such terms may be changed or modified in connection with a
bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, waiver or amendment
granted or agreed to by the Special Servicer pursuant to
Section 3.20);
(x) with respect to the circumstances described in clauses (b),
(d), (e) and (f) above, when such circumstances cease to exist
in the good faith reasonable judgment of the Special Servicer
and in accordance with the Servicing Standard, but, with
respect to any bankruptcy or insolvency proceedings described
in clauses (d), (e) and (f), no later than the entry of an
order or decree dismissing such proceeding;
(y) with respect to the circumstances described in clause (c)
above, when such default is cured; and
(z) with respect to the circumstances described in clause (g)
above, when such proceedings are terminated;
so long as at that time no circumstance identified in clauses (a) through (g)
above exists that would cause the Mortgage Loan to continue to be
characterized as a Specially Serviced Mortgage Loan and provided no additional
default is foreseeable in the reasonable judgment of the Special Servicer.
"Standard & Poor's": Standard & Poor's Ratings Services, a division
of The 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 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.
"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 13.5 basis point 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.
"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": 0.00225% 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. 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 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 Chase Securities Inc., First Union Capital
Markets or X.X. Xxxxxx or, in each case, its successor in interest.
"United States Person": A citizen or resident of the United States,
a corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of the United States, any State thereof or the District of Columbia
unless in the case of a partnership, Treasury Regulations are adopted that
provide otherwise, or an estate whose income from sources 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.
"Unrestricted Servicer Reports": Each of the Delinquent Loan Status
Report, Historical Loan Modification Report, Historical Loss Estimate Report,
REO Status Report and Loan Payoff Notification Report.
"USAP": The Uniform Single Attestation Program for Mortgage Bankers.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the
term of this Agreement, 100% of the Voting Rights shall be allocated among the
Holders of the 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; provided that, solely for the purpose of determining the Voting
Rights of the Classes of Sequential Pay Certificates, the aggregate Appraisal
Reduction Amount (determined as set forth herein) shall be treated as Realized
Losses with respect to the calculation of the Certificate Principal Balances
thereof; provided, further, however, that the aggregate Appraisal Reduction
Amount shall not reduce the Class Principal Balance of any Class for purposes
of determining the Controlling Class. 4% of the Voting Rights shall be
allocated to the Class IO Certificates.` 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 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)^0.16667-1}]) where .055 is the decimal version of the percentage 5.5%
and 0.16667 is the decimal version of the exponential power. The MEY in the
above calculation is 5.44%.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby assign, sell, transfer, set over and otherwise convey to
the Trustee, 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) 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), 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
Mortgage File and/or the Servicing File for any Mortgage Loan (other than a
Specially Serviced Mortgage Loan) at the expense of the Trust Fund. None of
the Trustee, any Custodian, the Master Servicer or the Special Servicer shall
be liable for any failure by any Mortgage Loan Seller or the Depositor to
comply with the document delivery requirements of the respective Mortgage Loan
Purchase Agreement and this Section 2.01 (b).
(c) If the Mortgage Loan Seller cannot deliver, or cause to be
delivered, on the Closing Date, as to any Mortgage Loan, any of the documents
and/or instruments referred to in clauses (ii), (iii), (vi) (if recorded) and
(viii) of the definition of "Mortgage File", with evidence of recording
thereon, solely because of a delay caused by the public recording office where
such document or instrument has been delivered for recordation, the delivery
requirements of the Mortgage Loan Purchase Agreement and Section 2.01(b) shall
be deemed to have been satisfied as to such non-delivered document or
instrument, and such non-delivered document or instrument shall be deemed to
have been included in the Mortgage File, provided that a photocopy of such
non-delivered document or instrument (certified by the Mortgage Loan Seller to
be a true and complete copy of the original thereof submitted for recording)
is delivered to the Trustee or a Custodian appointed thereby on or before the
Closing Date, and either the original of such non-delivered document or
instrument, or a photocopy thereof, with evidence of recording thereon, is
delivered to the Trustee or such Custodian within 120 days of the Closing Date
(or within such longer period after the Closing Date as the Trustee may
consent to, which consent shall not be unreasonably withheld so long as the
Mortgage Loan Seller is, in good faith, attempting to obtain from the
appropriate county recorder's office such original or photocopy). If the
Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(ii), (iii), (vi) (if recorded) and (viii) of the definition of "Mortgage
File," with evidence of recording thereon, for any other reason, including,
without limitation, that such non-delivered document or instrument has been
lost, the delivery requirements of the Mortgage Loan Purchase Agreement and
Section 2.01(b) shall be deemed to have been satisfied as to such
non-delivered document or instrument, and such non-delivered document or
instrument shall be deemed to have been included in the Mortgage File,
provided that a photocopy of such non-delivered document or instrument (with
evidence of recording thereon) is delivered to the Trustee or a Custodian
appointed thereby on or before the Closing Date.
If, on the Closing Date as to any Mortgage Loan, the Mortgage Loan
Seller does not deliver in complete and recordable form any one of the
assignments in favor of the Trustee referred to in clause (iv) or (v) of the
definition of "Mortgage File", the Mortgage Loan Seller may provisionally
satisfy the delivery requirements of the related Mortgage Loan Purchase
Agreement and Section 2.01(b) by delivering with respect to such Mortgage Loan
on the Closing Date an omnibus assignment of such Mortgage Loan; provided that
all required original assignments with respect to such Mortgage Loan in fully
complete and recordable form shall be delivered to the Trustee or its
Custodian within 120 days of the Closing Date (or within such longer period as
the Trustee in its discretion may permit).
(d) The Trustee shall, at the Depositor's expense and direction, as
to each Mortgage Loan, promptly (and in any event within 75 days following the
later of the Closing Date or the delivery of all assignments and UCC Financing
Statements to the Trustee) cause to be submitted for recording or filing, as
the case may be, in the appropriate public office for real property records or
UCC Financing Statements, as appropriate and to the extent timely delivered to
the Trustee in final, recordable form, each assignment of Mortgage, assignment
of Assignment of Leases and any other recordable documents (to the extent the
Trustee has actual knowledge that such documents are to be recorded) relating
to the Mortgage Loan, in favor of the Trustee referred to in clause (iv) of
the definition of "Mortgage File" and each UCC-2 and UCC-3 assignment in favor
of the Trustee and so delivered to the Trustee and referred to in clause
(viii) of the definition of "Mortgage File." Each such assignment, UCC-2 and
UCC-3 shall reflect that the recorded original should be returned by the
public recording office to the Trustee or its designee following recording,
and each such UCC-2 and UCC-3 assignment shall reflect that the file copy
thereof should be returned to the Custodian or its designee following filing;
provided, that in those instances where the public recording office retains
the original assignment of Mortgage or assignment of Assignment of Leases, the
Trustee shall obtain therefrom a certified copy of the recorded original, at
the expense of the Depositor. If any such document or instrument is lost or
returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Trustee shall direct the appropriate Mortgage Loan Seller
pursuant to the applicable Mortgage Loan Purchase Agreement promptly to
prepare or cause to be prepared a substitute therefor or cure such defect, as
the case may be, and thereafter the Trustee shall upon receipt thereof cause
the same to be duly recorded or filed, as appropriate.
(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 proviso in the definition of "Mortgage File" and the provisions of Section
2.01 and subject to the further limitations on review provided for in Section
2.02(b) and the exceptions noted on the schedule of exceptions of (i) the
Mortgage File delivered to it for each Mortgage Loan and (ii) a copy of a
fully executed counterpart of each Mortgage Loan Purchase Agreement, all in
good faith and without notice of any adverse claim, and declares that it or a
Custodian on its behalf holds and will hold such documents and the other
documents received by it that constitute portions of the Mortgage Files, and
that it holds and will hold the Mortgage Loans and other assets included in
the Trust Fund, in trust for the exclusive use and benefit of all present and
future Certificateholders. The Custodian hereby certifies to each of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the
Mortgage Loan Sellers, that except as identified in the schedule of
exceptions, which is attached hereto as Exhibit C 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 seventy-five (75)
Business Days after the Closing, the Trustee or the Custodian on its behalf
will review the Mortgage Files and certify (in a certificate substantially in
the form of Exhibit C-2) to each of the Depositor, the Master Servicer, the
Special Servicer and the Mortgage Loan Sellers that, with respect to each
Mortgage Loan listed in the Mortgage Loan Schedule, except as specifically
identified in the schedule of exceptions annexed thereto, (i) without regard
to the proviso in the definition of "Mortgage File," all documents specified
in clauses (i), (ii), (iv)(a), (v) and (vii), and to the extent provided in
the related Mortgage File and actually known by a Responsible Officer of the
Trustee to be required, clauses (iii), (iv)(b), (iv)(c), (vi), (viii) and (ix)
of the definition of "Mortgage File" are in its possession, (ii) all documents
delivered or caused to be delivered by the applicable Mortgage Loan Seller
constituting the related Mortgage File have been reviewed by it and appear
regular on their face and appear to relate to such Mortgage Loan, and (iii)
based on such examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule for such Mortgage Loan
with respect to the items specified in clauses (v) and (vi)(c) of the
definition of "Mortgage Loan Schedule" is correct.
(b) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation to inspect, review or examine
any of the documents, instruments, certificates or other papers relating to
the Mortgage Loans delivered to it to determine that the same are valid,
legal, effective, genuine, enforceable, in recordable form, sufficient or
appropriate for the represented purpose or that they are other than what they
purport to be on their face.
SECTION 2.03. Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Document Defects and Breaches of
Representations and Warranties.
(a) If any party hereto discovers or receives notice that any
document or documents constituting a part of a Mortgage File has not been
properly executed, is missing, contains information that does not conform in
any material respect with the corresponding information set forth in the
Mortgage Loan Schedule, or does not appear to be regular on its face (each, a
"Document Defect"), or discovers or receives notice of a breach of any
representation or warranty relating to any Mortgage Loan set forth in the
applicable Mortgage Loan Purchase Agreement (a "Breach"), and that in either
case materially and adversely affects the interests of the Certificateholders
or the value of the affected Mortgage Loans, the party discovering such
Document Defect or Breach shall give written notice to the other parties
hereto, to the Majority Subordinate Certificateholder and to the Rating
Agencies of such Document Defect or Breach. The Trustee shall in turn notify
the Controlling Class Representative (if different from the Majority
Subordinate Certificateholder and to the extent known to the Trustee) of such
Document Defect or Breach. Promptly upon becoming aware of any such Document
Defect or Breach (including through such written notice provided by any party
hereto or the Majority Subordinate Certificateholder as provided above), the
Master Servicer shall request in writing that the related Mortgage Loan Seller
(i) cure such Document Defect or Breach, as the case may be, in accordance
with Section 3(c) of the Mortgage Loan Purchase Agreement, (ii) repurchase the
affected Mortgage Loan in accordance with Section 3(c) of the Mortgage Loan
Purchase Agreement or (iii) substitute a Qualified Substitute Mortgage Loan
for such affected Mortgage Loan and pay the Master Servicer for deposit into
the Certificate Account any Substitution Shortfall Amount in connection
therewith in accordance with Sections 3(c) and 3(d) of the Mortgage Loan
Purchase Agreement. For a period of two years from the Closing Date, so 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 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 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.
(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 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 receive distributions from the proceeds of REMIC III
in respect of their REMIC 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) Each of the Master Servicer and the Special Servicer shall
service and administer the Mortgage Loans that each is obligated to service
and administer pursuant to this Agreement on behalf of the Trustee, for the
benefit of the Certificateholders, in accordance with any and all applicable
laws, the terms of this Agreement and the terms of the respective Mortgage
Loans and, to the extent consistent with the foregoing, in accordance with the
Servicing Standard. Without limiting the foregoing, and subject to Section
3.21, (i) the Master Servicer shall service and administer all Mortgage Loans
that are not Specially Serviced Mortgage Loans, and (ii) the Special Servicer
shall service and administer each Specially Serviced Mortgage Loan and REO
Property and shall render such services with respect to all Mortgage Loans and
REO Properties as are specifically provided for herein; provided, that the
Master Servicer shall continue to receive payments, make all calculations, and
prepare, or cause to be prepared, all reports required hereunder with respect
to the Specially Serviced Mortgage Loans, except for the reports specified
herein as prepared by the Special Servicer, as if no Servicing Transfer Event
had occurred and with respect to the REO Properties (and the related REO
Loans) as if no REO Acquisition had occurred, and to render such incidental
services with respect to such Specially Serviced Mortgage Loans and REO
Properties as are specifically provided for herein; provided, further,
however, that the Master Servicer shall not be liable for its failure to
comply with such duties insofar as such failure results from a failure by the
Special Servicer to provide sufficient information to the Master Servicer to
comply with such duties or failure by the Special Servicer to otherwise comply
with its obligations hereunder. All references herein to the respective duties
of the Master Servicer and the Special Servicer, and to the areas in which
they may exercise discretion, shall be subject to Section 3.21.
(b) Subject to Section 3.01(a) and Section 6.11, the Master Servicer
and the Special Servicer each shall have full power and authority, acting
alone, to do or cause to be done any and all things in connection with such
servicing and administration which it may deem necessary or desirable. Without
limiting the generality of the foregoing, each of the Master Servicer and the
Special Servicer, in its own name, with respect to each of the Mortgage Loans
it is obligated to service hereunder, is hereby authorized and empowered by
the Trustee to execute and deliver, on behalf of the Certificateholders and
the Trustee or any of them, (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage
File on the related Mortgaged Property and related collateral; (ii) in
accordance with the Servicing Standard and subject to Section 3.20 and Section
6.11, any and all modifications, waivers, amendments or consents to or with
respect to any documents contained in the related Mortgage File; and (iii) any
and all instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments. Subject to Section
3.10, the Trustee shall, at the written request of the 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 to collect all payments required under the terms
and provisions of the Mortgage Loans it is obligated to service hereunder and
shall, to the extent such procedures shall be consistent with this Agreement,
follow such collection procedures in accordance with the Servicing Standard;
provided, that with respect to the Mortgage Loans that have Anticipated
Repayment Dates, so long as the related Mortgagor is in compliance with each
provision of the related Mortgage Loan documents, the Master Servicer and
Special Servicer (including the Special Servicer in its capacity as a
Certificateholder), shall not take any enforcement action with respect to the
failure of the related Mortgagor to make any payment of Additional Interest or
principal in excess of the principal component of the constant Periodic
Payment, other than requests for collection, until the maturity date of the
related Mortgage Loan; provided, that the Master Servicer or Special Servicer,
as the case may be, may take action to enforce the Trust Fund's right to apply
excess cash flow to principal in accordance with the terms of the Mortgage
Loan documents. Consistent with the foregoing, the Special Servicer, with
regard to a Specially Serviced Mortgage Loan, or the Master Servicer, with
regard to a Mortgage Loan that is not a Specially Serviced Mortgage Loan, may
waive any Penalty Interest or late payment charge in connection with any
payment on a Mortgage Loan.
(b) All amounts collected in respect of any Mortgage Loan in the
form of payments from Mortgagors, Liquidation Proceeds (insofar as such
Liquidation Proceeds are of the nature described in clauses (i) through (iii)
of the definition thereof) or Insurance Proceeds shall be applied to either
amounts due and owing under the related Mortgage Note and Mortgage (including,
without limitation, for principal and accrued and unpaid interest) in
accordance with the express provisions of the related Mortgage Note and
Mortgage or, if required pursuant to the express provisions of the related
Mortgage, or as determined by the Master Servicer or Special Servicer in
accordance with the Servicing Standard, to the repair or restoration of the
related Mortgaged Property, and, in the absence of such express provisions,
shall be applied for purposes of this Agreement: first, as a recovery of any
related and unreimbursed Advances plus interest accrued 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 60 days after the Closing Date, the Master Servicer shall
notify the Lease Enhancement Policy Insurer and RVI Policy Insurer that (i)
both the Master Servicer and the Special Servicer shall be sent notices under
each Lease Enhancement Policy and RVI Policy and (ii) Norwest Bank Minnesota,
National Association, as trustee for the registered holders of the First
Union-Chase Manhattan Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2, respectively, shall be the loss
payee under each RVI Policy and shall be named the insured party under each
Lease Enhancement Policy. In the event that the Master Servicer has actual
knowledge of an Insured Event under any Lease Enhancement Policy or RVI
Policy, the Master Servicer shall notify the Special Servicer thereof within
three Business Days after learning of such event. The Special Servicer shall
prepare and file a "proof of loss" form with the Lease Enhancement Policy
Insurer or the RVI Policy Insurer, as the case may be, within five Business
Days after receiving notice or obtaining actual knowledge of any Insured Event
under the related policy and shall diligently process any claims under such
policy in accordance with the Servicing Standard. The Special Servicer will
abide by the terms and conditions relating to enforcing claims and monitor the
dates by which any claim or action must be taken (including delivering any
notices to the RVI Policy Insurer and Lease Enhancement Policy Insurer or
performing any actions required under each policy) under each RVI Policy and
Lease Enhancement Policy to realize the full value of such RVI Policy and
Lease Enhancement Policy for the benefit of the Certificateholders. The
Special Servicer shall give notice to the Master Servicer of any claim made
under any Lease Enhancement Policy and RVI Policy and of any Policy
Termination Event of which the Master Servicer does not already have notice.
(d) In the event that the Master Servicer receives notice of any
Policy Termination Event, the Master Servicer shall, within three Business
Days after receipt of such notice, notify the Special Servicer and the Trustee
of such Policy Termination Event in writing. Upon receipt of such notice, the
Special Servicer shall, notwithstanding that the servicing of the related
Mortgage Loan may not have been transferred to the Special Servicer in
accordance with Section 3.21 hereof, address such Policy Termination Event in
accordance with the Servicing Standard. Any legal fees incurred in connection
with a resolution of a Policy Termination Event shall be paid by the Special
Servicer as a Servicing Advance or if such advance is deemed to be a
Nonrecoverable Advance such fees shall be reimbursable to it as an Additional
Trust Fund Expense from the Certificate Account pursuant to Section 3.05(a).
(e) Within 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 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 Serviced Mortgage Loan, before the date on which the
Master Servicer is required to make any Servicing Advance with respect to a
given Mortgage Loan or REO Property; provided, however, that only two Business
Days' notice shall be required in respect of Servicing Advances required to be
made on an urgent or emergency basis (which may include, without limitation,
Servicing Advances required to make tax or insurance payments). In addition,
the Special Servicer shall provide the Master Servicer and the Trustee with
such information in its possession as the Master Servicer or the Trustee, as
applicable, may reasonably request to enable the Master Servicer or the
Trustee, as applicable, to determine whether a requested Servicing Advance
would constitute a Nonrecoverable Servicing Advance. Any request by the
Special Servicer that the Master Servicer make a Servicing Advance shall be
deemed to be a determination by the Special Servicer that such requested
Servicing Advance is not a Nonrecoverable Servicing Advance, and the Master
Servicer shall be entitled to conclusively rely on such determination. On the
fourth Business Day before each Distribution Date, the Special Servicer shall
report to the Master Servicer the Special Servicer's determination as to
whether any Servicing Advance previously made with respect to a Specially
Serviced Mortgage Loan or REO Loan is a Nonrecoverable Servicing Advance. The
Master Servicer shall be entitled to conclusively rely on such a
determination.
If the Master Servicer or Special Servicer is required under any
provision of this Agreement (including, but not limited to, this Section
3.03(c)) to make a Servicing Advance, but neither does so within 15 days after
such Advance is required to be made, the Trustee shall, if a Responsible
Officer of the Trustee has actual knowledge of such failure on the part of the
Master Servicer or Special Servicer, as the case may be, give written notice
of such failure, as applicable, to the Master Servicer or the Special
Servicer. If such Servicing Advance is not made by the Master Servicer or the
Special Servicer within three Business Days after such notice then (subject to
a determination that such Servicing Advance would not be a Nonrecoverable
Servicing Advance) the Trustee shall make such Servicing Advance. Any failure
by the Master Servicer or the Special Servicer to make a Servicing Advance
hereunder shall constitute an Event of Default by the Master Servicer or the
Special Servicer, as the case may be, subject to and as provided in Section
7.01.
(d) In connection with its recovery of any Servicing Advance from
the Certificate Account pursuant to Section 3.05(a), each of the Master
Servicer and the Trustee shall be entitled to receive, out of any amounts then
on deposit in the Certificate Account, any unpaid interest at the
Reimbursement Rate in effect from time to time, compounded annually, accrued
on the amount of such Servicing Advance (to the extent made from its own
funds) from the date made to but not including the date of reimbursement such
interest to be payable: (i) out of late payment charges and Penalty Interest
collected on or in respect of the related Mortgage Loan or REO Property during
the same Collection Period in which such Servicing Advance is reimbursed; and
(ii) to the extent that such late payment charges and Penalty Interest are
insufficient, but only after the related Advance has been reimbursed pursuant
to this Agreement, out of general collections on the Mortgage Loans and REO
Properties on deposit in the Certificate Account. The Master Servicer shall
reimburse itself or the Trustee, as appropriate and in accordance with Section
3.05(a), for any Servicing Advance as soon as practicable after funds
available for such purpose are deposited in the Certificate Account.
(e) The determination by the Master Servicer that it has made a
Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, shall be made in
accordance with the Servicing Standard and shall be evidenced by an Officers'
Certificate delivered promptly to the Trustee and the Depositor, setting forth
the basis for such determination, together with a copy of any appraisal of the
related Mortgaged Property or REO Property, as the case may be; which
appraisal shall take into account the factors specified in Section 3.18(e),
including without limitation, any environmental, engineering or other third
party reports available, and other factors that a prudent real estate
appraiser would consider and shall be conducted in accordance with the
standards of the Appraisal Institute performed pursuant to Section 3.09(a) by
the Master Servicer, or by the Special Servicer if the Mortgage Loan is a
Defaulted Mortgage Loan or, if no such appraisal has been performed, a copy of
an appraisal of the related Mortgaged Property or REO Property, performed
within the twelve months preceding such determination and the party delivering
such appraisal has no actual knowledge of a material adverse change in the
condition of the related Mortgaged Property that would draw into question the
applicability of such appraisal, by an Independent Appraiser or other expert
in real estate matters, and further accompanied by related Mortgagor operating
statements and financial statements, budgets and rent rolls of the related
Mortgaged Property and any engineers' reports, environmental surveys or
similar reports that the Master Servicer or the Special Servicer may have
obtained and that support such determination. The Trustee shall be entitled to
rely, conclusively, on any determination by the Master Servicer or the Special
Servicer that a Servicing Advance, if made, would be a Nonrecoverable Advance;
provided, however, that if the Master Servicer has failed to make a Servicing
Advance for reasons other than a determination by the Master Servicer that
such Servicing Advance would be a Nonrecoverable Advance, the Trustee shall
make such Servicing Advance within the time 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 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;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in the Certificate
Account;
(vi) any amounts required to be deposited by the Master
Servicer or the Special Servicer pursuant to Section 3.07(b) in
connection with losses resulting from a deductible clause in a
blanket hazard policy;
(vii) any amounts required to be transferred from an REO
Account pursuant to Section 3.16(c); and
(viii) any amount in respect of Purchase Prices and
Substitution Shortfall amounts pursuant to Section 2.03(b).
The foregoing requirements for deposit in the Certificate Account
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, amounts to be deposited in
Reserve Accounts, and amounts that the Master Servicer and the Special
Servicer are entitled to retain as additional servicing compensation pursuant
to Sections 3.11(b) and (d), need not be deposited by the Master Servicer in
the Certificate Account. If the Master Servicer shall deposit in the
Certificate Account any amount not required to be deposited therein, it may at
any time withdraw such amount from the Certificate Account, any provision
herein to the contrary notwithstanding. The Master Servicer shall promptly
deliver to the Special Servicer as additional servicing compensation in
accordance with Section 3.11(d), assumption fees, late charges and other
transaction fees received by the Master Servicer to which the Special Servicer
is entitled pursuant to either of such Sections upon receipt of a certificate
of a Servicing Officer of the Special Servicer describing the item and amount.
The Certificate Account shall be maintained as a segregated account, separate
and apart from trust funds created for mortgage pass-through certificates of
other series and the other accounts of the Master Servicer.
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 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) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.06 in connection with losses realized
on Permitted Investments with respect to funds held in the
Distribution Account;
(iii) any amounts required to be deposited by the Master
Servicer pursuant to Section 3.19 in connection with Prepayment
Interest Shortfalls; and
(iv) the Purchase Price paid in connection with the purchase by
the Master Servicer of all of the Mortgage Loans and any REO
Properties pursuant to Section 9.01, exclusive of the portion of
such amounts required to be deposited in the Certificate Account
pursuant to Section 9.01.
The Paying Agent shall, upon receipt, deposit in the Distribution
Account any and all amounts received by the Paying Agent that are required by
the terms of this Agreement to be deposited therein.
(c) The Master Servicer shall establish and maintain one or more
accounts (collectively, the "Interest Reserve Account"), held on behalf of the
Trustee in trust for the benefit of the Certificateholders. The Interest
Reserve Account shall be an Eligible Account. On or before each Distribution
Date in February and, during each year that is not a leap year, January, the
Master Servicer shall withdraw from the Certificate Account and deposit in the
Interest Reserve Account, with respect to each Interest Reserve Loan, an
amount equal to the Interest Reserve Amount in respect of such Interest
Reserve Loan for such Distribution Date (such withdrawal from the Certificate
Account to be made out of general collections on the Mortgage Pool where any
related P&I Advance was deposited in the Distribution Account).
(d) Funds in the Certificate Account, the Interest Reserve Account
and the Distribution Account may be invested only in Permitted Investments in
accordance with the provisions of Section 3.06. The Master Servicer shall give
written notice to the Trustee, the Special Servicer and the Rating Agencies of
the location of the Certificate Account as of the Closing Date and of the new
location of the Certificate Account prior to any change thereof. The Paying
Agent shall give notice to the Trustee, the Master Servicer, the Special
Servicer and the Rating Agencies of any new location of the Distribution
Account prior to any change thereof.
SECTION 3.05. Permitted Withdrawals From the Certificate Account,
Interest Reserve Account and the Distribution Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Certificate Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Paying Agent for deposit in the
Distribution Account the amounts required to be so deposited
pursuant to the first paragraph of Section 3.04(b) and any amount
that may be applied to make P&I Advances pursuant to Section
4.03(a);
(ii) to reimburse the Trustee and itself, in that order, for
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
(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 Trustee or itself, as the case may
be, in that order, any interest accrued and payable thereon in
accordance with Section 3.03(d) or 4.03(d), as applicable; the
Master Servicer's rights to payment pursuant to this clause (viii)
with respect to interest on any Advance being permitted to be
satisfied (A) out of late payment charges and Penalty Interest
collected on or in respect of the related Mortgage Loan or REO Loan,
during the same Collection Period in which such Advance is
reimbursed, and (B) to the extent that the late payment charges and
Penalty Interest described in the immediately preceding clause (A)
are insufficient, but only after such Advance has been reimbursed,
out of general collections on the Mortgage Loans and any REO
Properties on deposit in the Certificate Account.
(ix) to pay for costs and expenses incurred by (A) the Trust
Fund pursuant to Sections 2.01(b), 3.02(d) and 3.09(c) and (B) the
Special Servicer pursuant to Section 3.12(a);
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b), (A) interest and investment income
earned in respect of amounts held in the Certificate Account as
provided in Section 3.06(b), but only to the extent of the Net
Investment Earnings with respect to the Certificate Account for any
Collection Period; (B) Prepayment Interest Excesses and (C) Penalty
Interest and late charges; (to the extent such Penalty Interest
and/or late payment charges were not applied to offset interest on
Advances pursuant to clause (viii)(A) above);
(xi) to pay for the cost of an independent appraiser or other
expert in real estate matters retained pursuant to Section 3.03(e),
3.09(a), 3.18(e) or 4.03(c);
(xii) to pay itself, the Special Servicer, the Depositor, or
any of their respective directors, officers, employees and agents,
as the case may be, any amounts payable to any such Person pursuant
to Section 6.03;
(xiii) to pay for (A) the advice of counsel and tax accountants
contemplated by Section 3.17(a)(iii), (B) the cost of the Opinions
of Counsel contemplated by Sections 3.09(b)(ii), 3.09(c), 3.16(a)
and 11.02(a), (C) the cost of an Opinion of Counsel contemplated by
Section 11.01(a) or 11.01(c) in connection with any amendment to
this Agreement requested by the Master Servicer or the Special
Servicer that protects or is in furtherance of the rights and
interests of Certificateholders, (D) the cost of obtaining any REO
Extension sought by the Special Servicer as contemplated by Section
3.16(a), and (E) the cost of recording this Agreement in accordance
with Section 11.02(a);
(xiv) to pay itself, the Special Servicer, the 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, and
(xviii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from the Certificate Account pursuant to
clauses (ii) - (xv) above.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer) or the Trustee
from the Certificate Account amounts permitted to be paid to the Special
Servicer (or to such third party contractors) or the Trustee therefrom
promptly upon receipt of a certificate of a Servicing Officer of the Special
Servicer or of a Responsible Officer of the Trustee describing the item and
amount to which the Special Servicer (or such third party contractors) or the
Trustee is entitled. The Master Servicer may rely conclusively on any such
certificate and shall have no duty to re-calculate the amounts stated therein.
The Special Servicer shall keep and maintain separate accounting for each
Specially Serviced Mortgage Loan and REO Property, on a loan-by-loan and
property-by-property basis, for the purpose of justifying any request for
withdrawal from the Certificate Account. With respect to each Mortgage Loan
for which it makes an Advance, the Trustee shall similarly keep and maintain
separate accounting for each Mortgage Loan, on a loan-by-loan and
property-by-property basis, for the purpose of justifying any request for
withdrawal from the Certificate Account for reimbursements of Advances or
interest thereon.
(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) to pay the Master Servicer, as additional servicing
compensation in accordance with Section 3.11(b), interest and
investment income earned in respect of amounts held in the
Distribution Account as provided in Section 3.06(b) (but only to the
extent of the Net Investment Earnings with respect to the
Distribution Account for any Collection Period);
(iv) to pay for the cost of the Opinions of Counsel sought by
the Trustee (A) as provided in clause (v) of the definition of
"Disqualified Organization", (B) as contemplated by Sections
9.02(a)(i) and 10.01(i), or (C) as contemplated by Section 11.01(a)
or 11.01(c) in connection with any amendment to this Agreement
requested by the Trustee which amendment is in furtherance of the
rights and interests of Certificateholders;
(v) to pay any and all federal, state and local taxes imposed
on any of the REMICs created hereunder or on the assets or
transactions of any such REMIC, together with all incidental costs
and expenses, to the extent none of the Trustee, the REMIC
Administrator, the Master Servicer or the Special Servicer is liable
therefor pursuant to Section 10.01(j);
(vi) to pay the REMIC Administrator any amounts reimbursable to
it pursuant to Section 10.01(f);
(vii) to pay to the Master Servicer any amounts deposited by
the Master Servicer in the Distribution Account not required to be
deposited therein; and
(viii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c)The Master Servicer shall on each P&I Advance Date to occur in
March of each year, withdraw from the Interest Reserve Account and deposit
into the Distribution Account in respect of each Interest Reserve Loan, an
amount equal to the aggregate of the Interest Reserve Amounts deposited into
the Interest Reserve Account pursuant to Section 3.04(c) during the
immediately preceding Collection Period and, if applicable, the second
preceding Collection Period.
SECTION 3.06. Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Certificate Account, the
Distribution Account and the REO Account.
(a) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Interest
Reserve Account or the Certificate Account and may direct in writing the
Paying Agent with respect to the Distribution Account (each, for purposes of
this Section 3.06, an "Investment Account"), and the Special Servicer may
direct in writing any depository institution maintaining the REO Account
(also, for purposes of this Section 3.06, an "Investment Account"), to invest,
or if it is such depository institution, may itself invest, the funds held
therein in one or more Permitted Investments bearing interest or sold at a
discount, and maturing, unless payable on demand, no later than the Business
Day immediately preceding the next succeeding date on which such funds are
required to be withdrawn from such account pursuant to this Agreement. In the
event that the Master Servicer shall have failed to give investment directions
for any Servicing Account, any Reserve Account, the Certificate Account, the
Interest Reserve Account or the Distribution Account (exclusive of any
accounts as are held by the Master Servicer) or the Special Servicer shall
have failed to give investment directions for the REO Account by 11:00 A.M.
New York time on any Business Day on which there may be uninvested cash, such
funds held in the REO account shall be invested in securities described in
clause (i) of the definition of the term "Permitted Investments"; and such
funds held in such other accounts shall be invested in securities described in
clause (v) of such definition. The Paying Agent agrees that funds in the
Distribution Account will be invested in accordance herewith on the day of
receipt if received by 2:00 P.M. New York time. All such Permitted Investments
shall be held to maturity, unless payable on demand. Any investment of funds
in an Investment Account shall be made in the name of the Trustee (in its
capacity as such). The Master Servicer (with respect to Permitted Investments
of amounts in the Servicing Accounts, the Reserve Accounts, the Certificate
Account, the Interest Reserve Account and the Distribution Account) and the
Special Servicer (with respect to Permitted Investments of amounts in the REO
Account), on behalf of the Trustee, shall (and the Trustee hereby designates
the Master Servicer and the Special Servicer, as applicable, as the person
that shall) maintain continuous possession of any Permitted Investment that is
either (i) a "certificated security", as such term is defined in the UCC, or
(ii) other property in which a secured party may perfect its security interest
by possession under the UCC or any other applicable law. Possession of any
such Permitted Investment by the Master Servicer or the Special Servicer shall
constitute possession by a Person designated by the Trustee for purposes of
Section 8-313 of the UCC and possession by the Trustee, as secured party, for
purposes of Section 9-305 of the UCC and any other applicable law. If amounts
on deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Master Servicer (in the case of the
Certificate Account, Servicing Accounts, the Interest Reserve Account and
Reserve Accounts), the Paying Agent (in the case of the Distribution Account)
or the Special Servicer (in the case of the REO Account) shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the
lesser of (1) all amounts then payable thereunder and (2) the amount
required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer or the Special Servicer, as the
case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in
the Investment Account.
(b) Whether or not the Master Servicer directs the investment of
funds in any of the Servicing Accounts, the Reserve Accounts, the Certificate
Account, the Interest Reserve Account or the Distribution Account, interest
and investment income realized on funds deposited therein, to the extent of
the related Net Investment Earnings, if any, for each Collection Period and,
in the case of a Reserve Account or a Servicing Account, to the extent not
otherwise payable to the related Mortgagor in accordance with applicable law
or the related 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 Certificate Account
and the Distribution Account, excluding any accounts containing amounts
invested solely for the benefit of the Mortgagor under the terms of the
Mortgage Loan or applicable law) and the Special Servicer (in the case of the
REO Account) shall promptly deposit therein from its own funds, without right
of reimbursement, no later than the end of the Collection Period during which
such loss was incurred, the amount of the Net Investment Loss, if any, for
such Collection Period, provided, that neither the Master Servicer nor the
Special Servicer shall be required to deposit any loss on an investment of
funds in an Investment Account if such loss is incurred solely as a result of
the insolvency of the federal or state chartered depository institution or
trust company that holds such Investment Account, so long as such depository
institution or trust company satisfied the qualifications set forth in the
definition of Eligible Account at the time such investment was made.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment,
or if a default occurs in any other performance required under any Permitted
Investment and the Special Servicer or the Master Servicer fails to deposit
any losses with respect to such Permitted Investment pursuant to Section
3.06(b), the Trustee may and, subject to Section 8.02, upon the request of
Holders of Certificates entitled to not less than 25% of the Voting Rights
allocated to any Class, shall take such action as may be appropriate to
enforce such payment or performance, including the institution and prosecution
of appropriate proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including, without
limitation, the calculation of the Available 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 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 and amount as would permit it
to be a qualified FNMA seller-servicer of multifamily mortgage loans, or in
such other form and amount as would not adversely affect any rating assigned
by any Rating Agency to the Certificates (as evidenced in writing from each
Rating Agency). Each of the Master Servicer and the Special Servicer shall be
deemed to have complied with the foregoing provisions if an Affiliate thereof
has such insurance and, by the terms of such policy or policies, the coverage
afforded thereunder extends to the Master Servicer or the Special Servicer, as
the case may be. Any such errors and omissions policy shall provide for ten
days' written notice to the Trustee prior to cancellation. The Master Servicer
and the Special Servicer shall each cause the Trustee to be an additional loss
payee on any policy currently in place or procured pursuant to the
requirements of this Section 3.07(c).
For so long as the long-term debt obligations of the Master Servicer
or Special Servicer, as the case may be (or in the case of the initial Master
Servicer and Special Servicer, their respective direct or indirect parent),
are rated at least "A" or the equivalent by all of the Rating Agencies (or
such lower rating as will not result in qualification, downgrading or
withdrawal of the ratings then assigned to the Certificates, as evidenced in
writing by the Rating Agencies), such Person may self-insure with respect to
the risks described in this subsection.
SECTION 3.08. Enforcement of Alienation Clauses.
(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 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 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 any such waiver
in respect of a due-on-encumbrance 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, to its knowledge,
constitute one of the ten largest groups of similarly related Mortgage Loans
based on aggregate Stated Principal Balance as of the date of such proposed
waiver, 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 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, to its knowledge, constitute one of the ten largest
groups of similarly related Mortgage Loans based on aggregate Stated Principal
Balance as of the date of such proposed waiver, without receiving the prior
written confirmation from the Rating Agencies that such action would not
result in a downgrading, qualification or withdrawal of any of the ratings
then assigned to the Certificates.
(b) Notwithstanding any other provisions of this Section 3.08, the
Master Servicer or the Special Servicer, as applicable, may grant, without any
Rating Agency confirmation as provided in paragraph (a) above, a Mortgagor's
request for consent to subject the related Mortgaged Property to an easement
or right-of-way for utilities, access, parking, public improvements or another
purpose, and may consent to subordination of the related Mortgage Loan to such
easement or right-of-way provided the Master Servicer or the Special Servicer,
as applicable, shall have determined in accordance with the Servicing
Standards that such easement or right-of-way shall not materially interfere
with the then-current use of the related Mortgaged Property, or the security
intended to be provided by such Mortgage, the related Mortgagor's ability to
repay the Mortgage Loan, or materially or adversely affect the value of such
Mortgaged property or cause the Mortgage Loan to cease to be a qualified
mortgage loan for REMIC purposes.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required
Appraisals.
(a) The Special Servicer shall, subject to Sections 3.09(b) through
3.09(d) and Section 6.11, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for collection of delinquent payments, including, without limitation, pursuant
to Section 3.20. Subject to the second paragraph of Section 3.03(c), the
Master Servicer shall advance all costs and expenses (other than costs or
expenses that would, if incurred, constitute a Nonrecoverable Servicing
Advance) incurred by the Special Servicer in any such proceedings, and shall
be entitled to reimbursement therefor as provided in Section 3.05(a). Nothing
contained in this Section 3.09 shall be construed so as to require the Special
Servicer, on behalf of the Trust Fund, to make a bid on any Mortgaged Property
at a foreclosure sale or similar proceeding that is in excess of the fair
market value of such property, as determined by the Special Servicer in
accordance with the Servicing Standard and in its reasonable and good faith
judgment taking into account the factors described in Section 3.18(e) and the
results of any appraisal obtained pursuant to the following sentence, all such
bids to be made in a manner consistent with the Servicing Standard. If and
when the Master Servicer or the Special Servicer deems it necessary and
prudent for purposes of establishing the fair market value of any Mortgaged
Property securing a defaulted Mortgage Loan, whether for purposes of bidding
at foreclosure or otherwise, it may, at the expense of the Trust Fund, have an
appraisal performed with respect to such property by an Independent Appraiser
or other expert in real estate matters; which appraisal shall take into
account the factors specified in Section 3.18(e), including without
limitation, any environmental, engineering or other third party reports
available, and other factors that a prudent real estate appraiser would
consider. With respect to each Required Appraisal Mortgage Loan, the Special
Servicer will be required to obtain a Required Appraisal within 60 days of a
Mortgage Loan becoming a Required Appraisal Mortgage Loan (unless an appraisal
meeting the requirements of a Required Appraisal was obtained for such
Required Appraisal Mortgage Loan within the prior 12 months and the Special
Servicer has no actual knowledge of a material adverse change in the condition
of the related Mortgaged Property in which case such appraisal may be a letter
update of the Required Appraisal) and thereafter shall obtain a Required
Appraisal once every 12 months (or sooner if the Special Servicer has actual
knowledge of a material adverse change in the condition of the related
Mortgaged Property) if such Mortgage Loan remains a Required Appraisal
Mortgage Loan. The Special Servicer will deliver a copy of each Required
Appraisal to the Master Servicer and the Trustee within 10 Business Days of
obtaining such Required Appraisal. Subject to the second paragraph of Section
3.03(c), the Master Servicer shall advance the cost of such Required
Appraisal; provided, however, that such expense will be subject to
reimbursement to the Master Servicer as a Servicing Advance out of the
Certificate Account pursuant to Section 3.05(a)(vi) and 3.05(a)(vii).
(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 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 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, Chase
Manhattan, the Controlling Class Representative and the Trustee monthly in
writing as to any actions taken by the Special Servicer with respect to any
Mortgaged Property that represents security for a defaulted Mortgage Loan as
to which the environmental testing contemplated in Section 3.09(c) above has
revealed that any of the conditions set forth in clauses (i) and (ii) of the
first sentence thereof has not been satisfied, in each case until the earlier
to occur of satisfaction of all such conditions and release of the lien of the
related Mortgage on such Mortgaged Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain
a deficiency judgment if the state in which the Mortgaged Property is located
and the terms of the Mortgage Loan permit such an action and shall, in
accordance with the Servicing Standard, seek such deficiency judgment if it
deems advisable.
(g) The Special Servicer shall, with the reasonable cooperation of
the Master Servicer, prepare and file information returns with respect to
reports of foreclosures and abandonments of any Mortgaged Property and the
information returns relating to any Mortgaged Property required by Sections
6050J and 6050P of the Code and each year deliver to the Trustee an Officers'
Certificate stating that such reports have been filed. Such reports shall be
in form and substance sufficient to meet the reporting requirements imposed by
Sections 6050J and 6050P of the Code.
(h) The Special Servicer shall maintain accurate records, prepared
by a Servicing Officer, of each Final Recovery Determination in respect of any
Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officers' Certificate delivered to the
Trustee, the Controlling Class Representative and the Master Servicer no later
than the third Business Day following such Final Recovery Determination.
(i) Upon reasonable request of the Master Servicer, the Special
Servicer shall deliver to it and the related Sub-Servicer any other
information and copies of any other documents in its possession with respect
to a Specially Serviced Mortgage Loan or the related Mortgaged Property.
SECTION 3.10. Trustee and Custodian to Cooperate; Release of
Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Master Servicer of a notification that payment in full shall be escrowed
in a manner customary for such purposes, the Master Servicer shall promptly
notify the Trustee in writing, who shall release or cause the related
Custodian to release, by a certification (which certification shall be in the
form of a Request for Release in the form of Exhibit D-1 attached hereto and
shall be accompanied by the form of a release or discharge and shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Certificate Account pursuant to Section 3.04(a) have been or will be so
deposited) of a Servicing Officer (a copy of which certification shall be
delivered to the Special Servicer) and shall request delivery to it of the
related Mortgage File. Upon receipt of such certification and request, the
Trustee shall release, or cause any related Custodian to release, the related
Mortgage File to the Master Servicer and shall deliver to the Master Servicer
such release or discharge, duly executed. No expenses incurred in connection
with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the Certificate Account or the Distribution Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof), the
Trustee, upon request of the Master Servicer and receipt from the Master
Servicer of a Request for Release in the form of Exhibit D-1 attached hereto
signed by a Servicing Officer thereof, or upon request of the Special Servicer
and receipt from the Special Servicer of a Request for Release in the form of
Exhibit D-2 attached hereto, shall release, or cause any related Custodian to
release, such Mortgage File (or portion thereof) to the Master Servicer or the
Special Servicer, as the case may be. Upon return of such Mortgage File (or
portion thereof) to the Trustee or related Custodian, or the delivery to the
Trustee of a certificate of a Servicing Officer of the Special Servicer
stating that such Mortgage Loan was liquidated and that all amounts received
or to be received in connection with such liquidation that are required to be
deposited into the Certificate Account pursuant to Section 3.04(a) have been
or will be so deposited, or that such Mortgage Loan has become an REO
Property, a copy of the Request for Release shall be released by the Trustee
or related Custodian to the Master Servicer or the Special Servicer, as
applicable.
(c) Within seven Business Days (or within such shorter period (but
no less than three Business Days) as execution and delivery can reasonably be
accomplished if the Special Servicer notifies the Trustee of an exigency) of
the Special Servicer's request therefor, the Trustee shall execute and deliver
to the Special Servicer (or the Special Servicer may execute and deliver in
the name of the Trustee based on a limited power of attorney issued in favor
of the Special Servicer pursuant to Section 3.01(b)), in the form supplied to
the Trustee, any court pleadings, requests for trustee's sale or other
documents stated by the Special Servicer to be reasonably necessary to the
foreclosure or trustee's sale in respect of a Mortgaged Property or REO
Property or to any legal action brought to obtain judgment against any
Mortgagor on the Mortgage Note or Mortgage or to obtain a deficiency judgment,
or to enforce any other remedies or rights provided by the Mortgage Note or
Mortgage or otherwise available at law or in equity or to defend any legal
action or counterclaim filed against the Trust Fund, the Master Servicer or
the Special Servicer. Together with such documents or pleadings, the Special
Servicer shall deliver to the Trustee a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such
a lien upon completion of the foreclosure or trustee's sale.
SECTION 3.11. Servicing Compensation.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan (including each Specially Serviced Mortgage Loan) and REO
Loan. As to each such Mortgage Loan and REO Loan, the Master Servicing Fee
shall accrue at the related Master Servicing Fee Rate and on the same
principal amount respecting which the related interest payment due on such
Mortgage Loan or deemed to be due on such REO Loan is computed and calculated
on the basis of a 360-day year consisting of twelve 30-day months (or, in the
event of a Principal Prepayment in full or other Liquidation Event with
respect to a Mortgage Loan or REO Loan, on the basis of the actual number of
days to elapse from and including the related Due Date to but excluding the
date of such Principal Prepayment or Liquidation Event in a month consisting
of 30 days). The Master Servicing Fee with respect to any Mortgage Loan or REO
Loan shall cease to accrue if a Liquidation Event occurs in respect thereof.
Earned but unpaid Master Servicing Fees shall be payable monthly (or, with
respect to any Semi-Annual Mortgage Loan semi-annually), on a loan-by-loan
basis, from payments of interest on each Mortgage Loan and REO Revenues
allocable as interest on each REO Loan. The Master Servicer shall be entitled
to recover unpaid Master Servicing Fees in respect of any Mortgage Loan or REO
Loan out of that portion of related Insurance Proceeds or Liquidation Proceeds
allocable as recoveries of interest, to the extent permitted by Section
3.05(a)(iii). The right to receive the Master Servicing Fee may not be
transferred in whole or in part except in connection with the transfer of all
of the Master Servicer's responsibilities and obligations under this
Agreement.
(b) Additional servicing compensation in the form of (i) late
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, and (ii) one-hundred percent (100%) 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, may be retained by the Master Servicer and
are not required to be deposited in the Certificate Account provided that the
Master Servicer's right to receive late payment charges and Penalty Interest
pursuant to clause (i) above shall be limited to the portion of such items
that have not been applied to pay interest on Advances in respect of the
related Mortgage Loan as provided in Sections 3.03(d) and 4.03(d). The Master
Servicer shall also be entitled to additional servicing compensation in the
form of (i) Prepayment Interest Excesses; (ii) interest or other income earned
on deposits in the Certificate Account, the Interest Reserve Account and the
Distribution Account, in accordance with Section 3.06(b) (but only to the
extent of the Net Investment Earnings, if any, with respect to each such
account for each Collection Period), and (iii) to the extent not required to
be paid to any Mortgagor under applicable law or the terms of the related
Mortgage Loan, any interest or other income earned on deposits in the Reserve
Accounts and Servicing Accounts maintained thereby. The Master Servicer shall
be required to pay out of its own funds all expenses incurred by it in
connection with its servicing activities hereunder (including, without
limitation, payment of any amounts due and owing to any of its Sub-Servicers
and the premiums for any blanket policy insuring against hazard losses
pursuant to Section 3.07(b)), if and to the extent such expenses are not
payable directly out of the Certificate Account, and the Master Servicer shall
not be entitled to reimbursement therefor except as expressly provided in this
Agreement.
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect
to each Specially Serviced Mortgage Loan and each REO Loan. As to each
Specially Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall
accrue from time to time at the Special Servicing Fee Rate on the Stated
Principal Balance of such Specially Serviced Mortgage Loan and calculated on
the basis of a 360-day year consisting of twelve 30-day months (or, in the
event of a Principal Prepayment in full or other Liquidation Event with
respect to a Mortgage Loan or REO Loan, on the basis of the actual number of
days to elapse from and including the related Due Date to but excluding the
date of such Principal Prepayment or Liquidation Event in a month consisting
of 30 days). The Special Servicing Fee with respect to any Specially Serviced
Mortgage Loan or REO Loan shall cease to accrue as of the date a Liquidation
Event occurs in respect thereof or it becomes a Corrected Mortgage Loan.
Earned but unpaid Special Servicing Fees shall be payable monthly out of
general collections on the Mortgage Loans and any REO Properties on deposit in
the Certificate Account pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan, so long as such loan remains a Corrected Mortgage
Loan. As to each Corrected Mortgage Loan, the Workout Fee shall be payable out
of, and shall be calculated by application of the Workout Fee Rate to, each
collection of interest (other than Additional Interest and Penalty Interest)
and principal received on such Mortgage Loan for so long as it remains a
Corrected Mortgage Loan (net of any portion of such collection payable or
reimbursable to the Master Servicer, the Special Servicer or the Trustee for
any related unpaid or unreimbursed Master Servicing Fees and/or Advances)
received on such Mortgage 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 Substitution Mortgage Loan substituted in lieu
thereof), the Special Servicer shall be entitled to the Principal Recovery Fee
payable out of, and calculated by application of the Principal Recovery Fee
Rate to, all amounts (whether in the form of payments Liquidation Proceeds or
REO Revenues) received in respect of such Mortgage Loan (or, in the case of an
REO Loan, in respect of the related REO Property) and allocable as a recovery
of principal, interest and expenses in accordance with Section 3.02(b) or the
definition of "REO Loan", as applicable; provided that no Principal Recovery
Fee shall be payable in connection with, or out of (i) Insurance Proceeds and
(ii) Liquidation Proceeds resulting from, the purchase of any Mortgage Loan or
REO Property by the applicable Mortgage Loan Seller pursuant to the respective
Mortgage Loan Purchase Agreement, by the Majority Subordinate
Certificateholder pursuant to Section 3.18(b), by the Master Servicer or the
Special Servicer pursuant to Section 3.18(c) or by the Depositor, the Master
Servicer, Chase Manhattan, the Special Servicer or the Majority Subordinate
Certificateholder pursuant to Section 9.01.
The Special Servicer's right to receive the Special Servicing Fee,
the Workout Fee and the Principal Recovery Fee may not be transferred in whole
or in part except in connection with the transfer of all of the Special
Servicer's responsibilities and obligations under Sections 6.02, 6.04 and
6.09.
(d) Additional servicing compensation in the form of (i) late
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%) of assumption fees collected
on all Specially Serviced Mortgage Loans and (iii) modification fees collected
on all Mortgage Loans (other than modifications made by the Master Servicer
pursuant to Section 3.20(i)), in each case to the extent actually paid by the
related Mortgagor, shall be retained by the Special Servicer or promptly paid
to the Special Servicer by the Master Servicer and shall not be required to be
deposited in the Certificate Account pursuant to Section 3.04(a). The Special
Servicer shall also be entitled to additional servicing compensation in the
form of: (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 reimburseable
as an Additional Trust Fund Expense. Each of the Master Servicer for each
Mortgage Loan other than a Specially Serviced Mortgage Loan or REO Loan and
the Special Servicer for each Specially Serviced Mortgage Loan and REO Loan,
shall at its expense perform or cause to be performed an inspection of all the
Mortgaged Properties at least once per calendar year (or, in the case of
Mortgage Loans with a then current principal balance of less than $2,000,000,
every other calendar year) beginning in 2000. The Special Servicer and the
Master Servicer shall each prepare (and, in the case of the Special Servicer,
shall deliver to the Master Servicer) a written report of each such inspection
performed by it that sets forth in detail the condition of the Mortgaged
Property and that specifies the existence of: (i) any sale, transfer or
abandonment of the Mortgaged Property of which it is aware, (ii) any change in
the condition or value of the Mortgaged Property that it, in its reasonable
judgment, considers material, or (iii) any visible waste committed on the
Mortgaged Property. The Master Servicer shall deliver such reports to the
Trustee within 45 days of the related inspection and the Trustee shall,
subject to Section 3.15, make copies of all such inspection reports available
for review by Certificateholders and Certificate Owners during normal business
hours at the offices of the Trustee at all times after Trustee's receipt
thereof. Upon written request and at the expense of the requesting party, the
Trustee shall deliver copies of any such inspection reports to
Certificateholders and Certificate Owners. The Special Servicer shall have the
right to inspect or cause to be inspected (at its own expense) every calendar
year any Mortgaged Property related to a loan that is not a Specially Serviced
Mortgage Loan, provided that the Special Servicer obtains the approval of the
Master Servicer prior to such inspection, and provides a copy of such
inspection to the Master Servicer; and provided further that the Master
Servicer and the Special Servicer shall not 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 CSSA Property File Report; and (ii) a Comparative Financial
Status Report. Not later than 5:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
deliver or cause to be delivered to the Master Servicer the following reports
with respect to the Mortgage Loans (and, if applicable, the related REO
Properties) (or, as to clause (iv) below, only with respect to Specially
Serviced Mortgage Loans) providing the required information as of such
Determination Date: (i) a Historical Loss Estimate 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 Loss Estimate Report and REO Status Report
received from the Special Servicer pursuant to Section 3.12(b); (B) a CSSA
Property File Report and a Comparative Financial Status Report, each with the
required information as of the end of the preceding calendar month (in each
case combining the reports prepared by the Special Servicer and the Master
Servicer); (C) a Loan Payoff Notification Report (except with respect to
Specially Serviced Mortgage Loans) and Delinquent Loan Status Report, each
with the required information as of such Determination Date (in each case
combining the reports prepared by the Special Servicer and the Master
Servicer); and (D) a Watch List Report with the required information as of
such Determination Date.
(d) The Special Servicer will deliver to the Master Servicer the
reports set forth in Section 3.12(b) and this Section 3.12(d) and the Master
Servicer shall deliver to the Trustee the reports set forth in Section 3.12 in
an electronic format reasonably acceptable to the Special Servicer and the
Master Servicer with respect to the reports set forth in Section 3.12(b) and
this Section 3.12(d), and the Master Servicer and the Trustee with respect to
the reports set forth in Section 3.12(c). The Master Servicer may, absent
manifest error, conclusively rely on the reports to be provided by the Special
Servicer pursuant to Section 3.12(b) and this Section 3.12(d). The Trustee
may, absent manifest error, conclusively rely on the CSSA Loan File Report to
be provided by the Master Servicer pursuant to Section 4.02(b). In the case of
information or reports to be furnished by the Master Servicer to the Trustee
pursuant to this Section 3.12, to the extent that such information is based on
reports to be provided by the Special Servicer pursuant to Section 3.12(b) and
this Section 3.12(d) and, to the extent that such reports are to be prepared
and delivered by the Special Servicer pursuant to Section 3.12(b) and this
Section 3.12(d), the Master Servicer shall have no obligation to provide such
information or reports until it has received such information or reports from
the Special Servicer and the Master Servicer shall not be in default hereunder
due to a delay in providing the reports required by this Section 3.12 to the
extent caused by the Special Servicer's failure to timely provide any report
required under Section 3.12(b) and this Section 3.12(d) of this Agreement.
The Special Servicer, in the case of any Specially Serviced Mortgage
Loan and REO Loan, and the Master Servicer, in the case of all other Mortgage
Loans shall each consistent with the Servicing Standard, endeavor to obtain
quarterly and annual operating statements and rent rolls with respect to the
related Mortgage Loans and REO Properties, which efforts shall include in the
case of Mortgage Loans, a letter sent to the related Mortgagor each quarter
(followed up with telephone calls) requesting such quarterly and annual
operating statements and rent rolls until they are received to the extent such
action is consistent with applicable law.
The Special Servicer shall promptly following receipt, deliver
copies of the operating statements and rent rolls received or obtained by it
to the Master Servicer, and the Master Servicer shall 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 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 Trustee, the Special Servicer or the Controlling
Class Representative in each case upon request.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver
to the Trustee, the Underwriters, and the Rating Agencies, and, in the case of
the Special Servicer, to the Master Servicer, on or before April 30 of each
year, beginning April 30, 2000, an Officers' Certificate stating, as to each
signer thereof, that (i) a review of the activities of the Master Servicer or
the Special Servicer, as the case may be, during the preceding calendar year
and of its performance under this Agreement has been made under such officer's
supervision, (ii) to the best of such officer's knowledge, based on such
review, the Master Servicer or the Special Servicer, as the case may be, has
fulfilled all of its obligations under this Agreement in all material respects
throughout such year, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to such officer and
the nature and status thereof and (iii) the Master Servicer or the Special
Servicer, as the case may be, has received no notice regarding qualification,
or challenging the status, of REMIC I, REMIC II or REMIC III as a REMIC under
the REMIC Provisions or of the Grantor Trust as a "grantor trust" 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 each of
the Master Servicer and the Special Servicer at its expense shall cause a firm
of Independent public accountants (which may also render other services to the
Master Servicer or the Special Servicer) that is a member of the American
Institute of Certified Public Accountants to furnish a statement to the
Trustee, Underwriters, Rating Agencies, Depositor and, in the case of the
Special Servicer, to the Master Servicer to the effect that such firm has
examined the servicing operations of the Master Servicer or the Special
Servicer, as the case may be, for the previous calendar year (except that the
first such report shall cover the period from the Closing Date through
December 31, 1999) and that, on the basis of such examination, conducted
substantially in compliance with USAP, such firm confirms that the Master
Servicer or the Special Servicer, as the case may be, complied with the
minimum servicing standards identified in USAP, in all material respects,
except for such significant exceptions or errors in records that, in the
opinion of such firm, the USAP requires it to report. In rendering such
statement, such firm may rely, as to matters relating to direct servicing of
mortgage loans by Sub-Servicers, upon comparable statements for examinations
conducted substantially in compliance with the Uniform Single Audit Program
for Mortgage Bankers (rendered within one year of such statement) of
independent public accountants with respect to the related Sub-Servicer.
SECTION 3.15. Access to Certain Information.
(a) Upon ten days prior written notice, the Master Servicer (with
respect to the items in clauses (a), (b), (c), (d), (e), (f), (h) and (i)
below), the Special Servicer (with respect to the items in clauses (d), (e),
(f), (g), (h) and (i) below) and the Trustee (with respect to the items in
clause (i) below and to the extent any other items are in its possession)
shall make available at their respective offices 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, 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 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 via the Trustee's or
the Master Servicer, 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 will, and the Master Servicer may but is not
required to, make available each month to any interested party (i) the
Distribution Date Statement via their respective Internet Website, and in the
case of the Trustee, the Trustee's electronic bulletin board and fax-on-demand
service and (ii) as a convenience for interested parties, the Prospectus, the
Prospectus Supplement and this Agreement on their respective Internet Website.
In addition, the Trustee will, and the Master Servicer may but is not required
to, make available each month the Unrestricted Servicer Reports, the CSSA Loan
File Report and the CSSA loan setup file to any interested party on their
respective Internet Website. The Trustee will make available each month, (i)
the Restricted Servicer Reports, and (ii) the CSSA 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 K; provided
that the Rating Agencies, the Depositor, the parties hereto and the
Underwriters will not need to provide such certification to receive a password
from the Trustee. 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 Loss Estimate Report, the REO Status Report, the Watch List Report,
the Loan Payoff Notification Report, the Comparative Financial Status Report,
the CSSA loan setup file, the CSSA Loan File and the CSSA Property File. In
connection with providing access to the Trustee's Internet Website or
electronic bulletin board or the Master Servicer's Internet Website, the
Trustee or the Master Servicer, as applicable, may require registration and
the acceptance of a disclaimer.
If three or more Holders or the Controlling Class Representative
(hereinafter referred to as "Applicants" with a single Person which (together
with its Affiliates) is the Holder of more than one Class of Certificates
being viewed as a single Applicant for these purposes) apply in writing to the
Trustee, and such application states that the Applicants' desire to
communicate with other Holders with respect to their rights under this
Agreement or under the Certificates and is accompanied by a copy of the
communication which such Applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application, send,
at the Applicants' expense, the written communication proffered by the
Applicants to all Certificateholders at their addresses as they appear in the
Certificate Register.
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
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), such
reserve not to exceed $10,000 with respect to each such REO Property or to
cover a period of more than twelve months.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all
deposits to, and withdrawals from, the REO Account pursuant to Section 3.16(b)
or (c). The Special Servicer shall provide the Master Servicer any information
with respect to the REO Account as is reasonably requested by the Master
Servicer.
SECTION 3.17. Management of REO Property.
(a) 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
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
(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
(v) the Special Servicer shall be obligated with respect
thereto to the same extent as if it alone were performing all duties
and obligations in connection with the operation and management of
such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. No agreement entered into pursuant to this
Section 3.17(c) shall be deemed a Sub-Servicing Agreement for purposes of
Section 3.22.
SECTION 3.18. Sale of Mortgage Loans and REO Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO
Property only on the terms and subject to the conditions set forth in this
Section 3.18 or as otherwise expressly provided in or contemplated by Sections
2.03(a), 2.02(b) and 9.01.
(b) Subject to Sections 2.03(a) and 2.02(b), if the Special Servicer
has determined in good faith, and after making reasonable efforts to specially
service such Defaulted Mortgage Loan, that any Defaulted Mortgage Loan will
become subject to foreclosure proceedings, the Special Servicer shall promptly
so notify in writing the Trustee and the Master Servicer, and the Trustee,
following its receipt of such notice, shall, within 10 days after receipt of
such notice, notify the Majority Subordinate Certificateholder. The Majority
Subordinate Certificateholder may at its option purchase from the Trust Fund,
at a price equal to the Purchase Price, any such Mortgage Loan. The Purchase
Price for any Mortgage Loan purchased under this paragraph (b) shall be
deposited into the Certificate Account, and the Custodian, upon receipt of an
Officers' Certificate from the Master Servicer to the effect that such deposit
has been made, shall release or cause to be released to the Majority
Subordinate Certificateholder the related Mortgage File, and shall execute and
deliver such instruments of transfer or assignment, in each case without
recourse, as shall be provided to it and are reasonably necessary to vest in
the Majority Subordinate Certificateholder ownership of such Mortgage Loan. In
connection with any such purchase, the Special Servicer shall deliver the
related Servicing File to the Majority Subordinate Certificateholder.
(c) If the Majority Subordinate Certificateholder has not purchased
any Defaulted Mortgage Loan within 30 days of its having received notice in
respect thereof pursuant to Section 3.18(b) above, either the Master Servicer
or the Special Servicer (with preference given to the Special Servicer) may at
its option purchase such Mortgage Loan from the Trust Fund, at a price equal
to the Purchase Price. The Purchase Price for any such Mortgage Loan purchased
under this paragraph (c) shall be deposited into the Certificate Account, and
the Custodian, upon receipt of an Officers' Certificate from the Master
Servicer to the effect that such deposit has been made, shall release or cause
to be released to the Master Servicer or the Special Servicer, as applicable,
the related Mortgage File, and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be provided to
it and are reasonably necessary to vest in the Master Servicer or the Special
Servicer, as applicable, the ownership of such Mortgage Loan. In connection
with any such purchase by the Master Servicer, the Special Servicer shall
deliver the related Servicing File to the Master Servicer.
(d) Subject to Section 6.11, the Special Servicer may offer to sell
any Defaulted Mortgage Loan not otherwise purchased pursuant to Sections
3.18(b) and 3.18(c) above, if and when the Special Servicer determines,
consistent with the Servicing Standard, that such a sale would be in the best
economic interests of the Trust Fund. Such offer shall be made in a
commercially reasonable manner (which, for purposes hereof, includes an offer
to sell without representation or warranty other than customary warranties of
title and condition, if liability for breach thereof is limited to recourse
against the Trust Fund) for a period of not less than 10 days. Unless the
Special Servicer determines that acceptance of any bid would not be in the
best economic interests of the Certificateholders, the Special Servicer shall
accept the highest cash bid received from any Person that constitutes a fair
price for such Mortgage Loan. In the absence of any bid determined as provided
below to be fair, the Special Servicer shall proceed with respect to such
Defaulted Mortgage Loan in accordance with Section 3.09.
Subject to Section 6.11, the Special Servicer shall use its best
efforts to solicit bids for each REO Property in such manner as will be
reasonably likely to realize a fair price within the time period provided for
by Section 3.16(a). The Special Servicer shall accept the first (and, if
multiple bids are received contemporaneously or subsequently, the highest,
provided that the Special Servicer is not obligated to the first bidder) cash
bid received from any Person that constitutes a fair price for such REO
Property. If the Special Servicer reasonably believes that it will be unable
to realize a fair price for any REO Property within the time constraints
imposed by Section 3.16(a), the Special Servicer shall dispose of such REO
Property upon such terms and conditions as the Special Servicer shall deem
necessary and desirable to maximize the recovery thereon under the
circumstances and, in connection therewith, shall accept the highest
outstanding cash bid, regardless of from whom received.
The Special Servicer shall give the Trustee and the Master Servicer
not less than five Business Days' prior written notice of its intention to
sell any Mortgage Loan or REO Property pursuant to this Section 3.18(d). No
Interested Person shall be obligated to submit a bid to purchase any such
Mortgage Loan or REO Property, and notwithstanding anything to the contrary
herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may bid for or purchase any Defaulted Mortgage Loan or any REO
Property pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
3.18(d), shall be determined by the Special Servicer (except as otherwise
provided below in this Section 3.18(e)). In determining whether any bid
received from an Interested Person represents a fair price for any such
Mortgage Loan or REO Property, the Special Servicer shall be supplied with and
may rely on a narrative 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, 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 0.03% 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.
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) permit the transfer or transfers of equity interests in
the borrower or any equity owner of the borrower that is required to
be a special purpose entity that would result, in the aggregate
during the term of the related Mortgage Loan, in a transfer greater
than 49% of the total interest in the borrower and/or any equity
owner of the borrower that is required to be a special purpose
entity without the prior written confirmation from each Rating
Agency that such changes will not result in the qualification,
downgrade or withdrawal to the ratings then assigned to the
Certificates;
(v) in the reasonable, good faith judgment of the Special
Servicer, otherwise materially impair the security for such Mortgage
Loan or reduce the likelihood of timely payment of amounts due
thereon; or
(vi) impair the value or enforceability of a Lease Enhancement
Policy or RVI Policy.
(d) Notwithstanding Section 3.20(c), but subject to the third
paragraph of this Section 3.20(d), and the rights of the Controlling Class
Representative set forth in Section 6.11, the Special Servicer may (i) reduce
the amounts owing under any Specially Serviced Mortgage Loan by forgiving
principal, accrued interest or any Prepayment Premium or Yield Maintenance
Charge, (ii) reduce the amount of the 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 appraisal supports the determination of
the Special Servicer contemplated by clause (B) of the proviso to the
immediately preceding paragraph and if such Balloon Loan is an Insured Balloon
Loan, that such extension will not impair the value or enforceability of the
related RVI Policy.
In no event will the Special Servicer (i) extend the maturity date
of a Mortgage Loan beyond a date that is two years prior to the Rated Final
Distribution Date, (ii) extend the maturity date of any Mortgage Loan which
has a Mortgage Rate below the prevailing interest rate for comparable loans at
the time of such modification as determined by the Special Servicer, unless
(A) such Mortgage Loan is a Balloon Loan, (B) the related Mortgagor has failed
to make the Balloon Payment at its Stated Maturity Date and (C) such Balloon
Loan is not a Specially Serviced Mortgage Loan (other than by reason of the
failure to make its Balloon Payment) and has not been delinquent with respect
to a Periodic Payment (other than the Balloon Payment) in the preceding twelve
months, in which case the Special Servicer may permit up to three one-year
extensions at the existing Mortgage Rate for such Mortgage Loan (provided that
such limitation of extensions made at below market rate shall not limit the
ability of the Special Servicer to extend the maturity date of any Mortgage
Loan at an interest rate at or in excess to the prevailing rate for comparable
loans at the time of such modification), (iii) if the Mortgage Loan is secured
by a Ground Lease (and not by the corresponding fee simple interest), extend
the maturity date of such Mortgage Loan beyond a date which is less than 10
years prior to the expiration of the term of such Ground Lease; (iv) reduce
the Mortgage Rate to a rate below the prevailing interest rate for comparable
loans at the time of such modification, as determined by the Special Servicer;
or (v) defer interest due on any Mortgage Loan in excess of 10% of the Stated
Principal Balance of such Mortgage Loan or defer the collection of interest on
any Mortgage Loan without accruing interest on such deferred interest at a
rate at least equal to the Mortgage Rate of such Mortgage Loan.
The determination of the Special Servicer contemplated by clause (B)
of the proviso to the first paragraph of this Section 3.20(d) shall be
evidenced by an Officer's Certificate to such effect delivered to the Trustee
and the Master Servicer and describing in reasonable detail the basis for the
Special Servicer's determination. The Special Servicer shall append to such
Officer's Certificate any information including but not limited to income and
expense statements, rent rolls, property inspection reports and appraisals
that support such determination.
(e) Any payment of interest that is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated
Principal Balance of the related Mortgage Loan, notwithstanding that the terms
of such modification, waiver or amendment so permit. The foregoing shall in no
way limit the Special Servicer's ability to charge and collect from the
Mortgagor costs otherwise collectible under the terms of the related Mortgage
Note and this Agreement together with interest thereon.
(f) The Special Servicer or, with respect to clause (i) below, the
Master Servicer may, as a condition to granting any request by a Mortgagor for
consent, modification, waiver or indulgence or any other matter or thing, the
granting of which is within its discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan and is permitted
by the terms of this Agreement, require that such Mortgagor pay to it (i) as
additional servicing compensation, a reasonable or customary fee for the
additional services performed in connection with such request, and (ii) any
related costs and expenses incurred by it. In no event shall the Special
Servicer be entitled to payment for such fees or expenses unless such payment
is collected from the related Mortgagor.
(g) The Special Servicer shall notify the Master Servicer, any
related Sub-Servicers and the Trustee, in writing, of any modification, waiver
or amendment of any term of any Mortgage Loan (including fees charged the
Mortgagor) and the date thereof, and shall deliver to the Custodian for
deposit in the related Mortgage File, an original counterpart of the agreement
relating to such modification, waiver or amendment, promptly (and in any event
within ten Business Days) following the execution thereof. Copies of each
agreement whereby 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 consistent with the
terms of such Mortgage Loan, unless (i) the defeasance collateral consists of
U.S. Treasury obligations, (ii) the Master Servicer has determined that the
defeasance will not result in an Adverse REMIC Event (provided that the Master
Servicer shall be entitled to rely conclusively on an Opinion of Counsel to
that effect), (iii) the Master Servicer has notified the Rating Agencies, (iv)
each Rating Agency has confirmed that such defeasance will not result in the
qualification, downgrade or withdrawal of the rating then assigned to any
Class of Certificates to which a rating has been assigned by either Rating
Agency (provided that the requirement to obtain such confirmation will be a
precondition to the defeasance only if the Master Servicer is able under the
related Mortgage Loan documents and applicable law to prevent the defeasance
if such confirmation is not obtained), and (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
(or, in the case of an ARD Loan, on or before its Anticipated Repayment Date)
and to timely pay each Periodic Payment scheduled to be due prior thereto but
after the defeasance; 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 (v) 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.
(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 a Lease Enhancement Policy or RVI Policy without
receiving prior written confirmation from each Rating Agency, within 30 days
of notification by the Special Servicer (if no such confirmation is given
within 30 days, such confirmation shall be deemed given), that such
modification, waiver or amendment will not result in a qualification,
downgrade or withdrawal of the ratings on the Certificates or the prior
written consent of each Rating Agency. The Master Servicer shall not consent
to any modification, waiver or amendment of any Lease Enhancement Policy.
(k) To the extent that either the Master Servicer or Special
Servicer waives any Penalty Interest or late charge in respect of any Mortgage
Loan, whether pursuant to Section 3.02(a) or this Section 3.20, the respective
amounts of additional servicing compensation payable to the Master Servicer
and the Special Servicer out of such Penalty Interest or late charges shall be
reduced proportionately based upon the respective amounts that had been
payable thereto out of such Penalty Interest or late charges immediately prior
to such waiver.
SECTION 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan, the Master Servicer shall promptly notify
the Trustee, and if the Master Servicer is not also the Special Servicer, the
Master Servicer shall immediately give notice thereof, and shall deliver or
cause to be delivered a copy of the related Mortgage File and Servicing File,
to the Special Servicer and shall use reasonable efforts to provide the
Special Servicer with all information, documents (or copies thereof) and
records (including records stored electronically on computer tapes, magnetic
discs and the like) relating to the Mortgage Loan either in the Master
Servicer's or any of its directors', officers', employees', affiliates' or
agents' possession or control or otherwise available to the Master Servicer
without undue burden or expense, and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto
without acting through a Sub-Servicer. The Master Servicer shall use
reasonable efforts to comply with the preceding sentence within five Business
Days of the occurrence of each related Servicing Transfer Event; provided,
however, if the information, documents and records requested by the Special
Servicer are not contained in the Servicing File, the Master Servicer shall
have such period of time as reasonably necessary to make such delivery.
Notwithstanding the occurrence of a Servicing Transfer Event, the Master
Servicer shall continue to receive payments on such Mortgage Loan (including
amounts collected by the Special Servicer).
Upon determining that a Specially Serviced Mortgage Loan has become
a Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof, and
shall return the related Mortgage File and Servicing File and all other
information, documents and records that were not part of the Servicing File
when it was delivered to the Special Servicer within five Business Days of the
occurrence, to the Master Servicer (or such other Person as may be directed by
the Master Servicer) and upon giving such notice, and returning such Servicing
File, to the Master Servicer (or such other Person as may be directed by the
Master Servicer), the Special Servicer's obligation to service such Mortgage
Loan, and the Special Servicer's right to receive the Special Servicing Fee
with respect to such Mortgage Loan, shall terminate, and the obligations of
the Master Servicer to service and administer such Mortgage Loan shall resume.
(b) In servicing any Specially Serviced Mortgage Loans, the
Special Servicer shall provide to the Custodian originals of documents
included within the definition of "Mortgage File" for inclusion in the related
Mortgage File (with a copy of each such original to the Master Servicer), and
copies of any additional related Mortgage Loan information, including
correspondence with the related Mortgagor.
(c) On or before each Determination Date, the Special
Servicer shall deliver to the Master Servicer and each Rating Agency (or such
other Person as may be directed by the Master Servicer) a statement in writing
and in computer readable format (the form of such statement to be agreed upon
by the Master Servicer) describing, on a loan-by-loan and property-by-property
basis, (1) insofar as it relates to Specially Serviced Mortgage Loans and REO
Properties, the information described in clauses (x) through (xiii) of Section
4.02(a) and, insofar as it relates to the Special Servicer, the information
described in clauses (xxiii) and (xxiv) of Section 4.02(a), (2) the amount of
all payments, Insurance Proceeds and Liquidation Proceeds received, and the
amount of any Realized Loss incurred, with respect to each Specially Serviced
Mortgage Loan during the related Collection Period, and the amount of all REO
Revenues, Insurance Proceeds and Liquidation Proceeds received, and the amount
of any Realized Loss incurred, with respect to each REO Property during the
related Collection Period, (3) the amount, purpose and date of all Servicing
Advances made by the Special Servicer with respect to each Specially Serviced
Mortgage Loan and REO Property during the related Collection Period and (4)
such additional information relating to the Specially Serviced Mortgage Loans
and REO Properties as the Master Servicer reasonably requests to enable it to
perform its responsibilities under this Agreement. Notwithstanding the
foregoing provisions of this subsection (c), the Master Servicer shall
maintain ongoing payment records with respect to each of the Specially
Serviced Mortgage Loans and REO Properties and shall provide the Special
Servicer with any information reasonably available to the Master Servicer
required by the Special Servicer to perform its duties under this Agreement.
(d) No later than 30 days after a Mortgage Loan becomes a Specially
Serviced Mortgage Loan, the Special Servicer shall deliver to each Rating
Agency, the Trustee, the Master Servicer and the Controlling Class
Representative a report (the "Asset Status Report") with respect to such Loan
and the related Mortgaged Property. Such Asset Status Report shall set forth
the following information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Mortgage
Loan and negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the
Servicing Standard, that are applicable to the exercise of remedies
as aforesaid and to the enforcement of any related guaranties or
other collateral for the related Specially Serviced Mortgage Loan
and whether outside legal counsel has been retained;
(iii) the most current rent roll and income or operating
statement available for the related Mortgaged Property;
(iv) the Appraised Value of the Mortgage Property together with
the assumptions used in the calculation thereof;
(v) summary of the Special Servicer's recommended action with
respect to such Specially Serviced Mortgage Loan; and
(vi) such other information as the Special Servicer deems
relevant in light of the Servicing Standard.
If within ten (10) Business Days of receiving an Asset Status
Report, the Controlling Class Representative does not disapprove such Asset
Status Report in writing, the Special Servicer shall implement the recommended
action as outlined in such Asset Status Report; provided, however, that the
Special Servicer may not take any action that is contrary to applicable law,
the Servicing Standard, or the terms of the applicable Mortgage Loan
documents. If the Controlling Class Representative disapproves such Asset
Status Report, the Special Servicer will revise such Asset Status Report and
deliver to the Controlling Class Representative, the Rating Agencies and the
Master Servicer a new Asset Status Report as soon as practicable, but in no
event later than 30 days after such disapproval.
The Special Servicer shall revise such Asset Status Report as
described above in this Section 3.21(d) until the Controlling Class
Representative shall fail to disapprove such revised Asset Status Report in
writing within ten (10) Business Days of receiving such revised Asset Status
Report or until the Special Servicer makes one of the determinations described
below. The Special Servicer may, from time to time, modify any Asset Status
Report it has previously delivered and implement such report, provided such
report shall have been prepared, reviewed and not rejected pursuant to the
terms of this Section. Notwithstanding the foregoing, the Special Servicer (i)
may, following the occurrence of an extraordinary event with respect to the
related Mortgaged Property, take any action set forth in such Asset Status
Report before the expiration of a ten (10) Business Day period if the Special
Servicer has reasonably determined that failure to take such action would
materially and adversely affect the interests of the Certificateholders and it
has made a reasonable effort to contact the Controlling Class Representative
and (ii) in any case, shall determine whether such affirmative disapproval is
not in the best interest of all the Certificateholders pursuant to the
Servicing Standard.
Upon making such determination in (ii) above, the Special Servicer
shall notify the Trustee of such rejection and deliver to the Trustee a
proposed notice to Certificateholders which shall include a copy of the Asset
Status Report, and the Trustee shall send such notice to all
Certificateholders. If the majority of such Certificateholders, as determined
by Voting Rights, fail, within 5 days of the Trustee's sending such notice, to
reject such Asset Status Report, the Special Servicer shall implement the
same. If the Asset Status Report is rejected by a majority of the
Certificateholders, the Special Servicer shall revise such Asset Status Report
as described above in this Section 3.21(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 shall (a)
require or cause the Special Servicer to violate the terms of a Specially
Serviced Mortgage Loan, applicable law or any provision of this Agreement,
including the Special Servicer's obligation to act in accordance with the
Servicing Standard and to maintain the REMIC status of each REMIC, (b) result
in the imposition of a "prohibited transaction" or "prohibited contribution"
tax under the REMIC Provisions or (c) expose the Master Servicer, the Special
Servicer, the Depositor, the Mortgage Loan Sellers, the Trust Fund or the
Trustee or the officers and the directors of each party to claim, suit or
liability or (d) expand the scope of the Master Servicer's, Trustee's or
Special Servicer's responsibilities under this Agreement.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer may enter into
Sub-Servicing Agreements to provide for the performance by third parties of
any or all of their respective obligations hereunder, provided that, in each
case, the Sub-Servicing Agreement: (i) is consistent with this Agreement in
all material respects, requires the Sub-Servicer to comply with all of the
applicable conditions of this Agreement and includes events of default with
respect to the Sub-Servicer substantially similar to the Events of Default set
forth in Section 7.01(a) hereof (other than Section 7.01(a)(x)) to the extent
applicable (modified to apply to the Sub-Servicer instead of the Master
Servicer); (ii) provides that if the Master Servicer or the Special Servicer,
as the case may be, shall for any reason no longer act in such capacity
hereunder (including, without limitation, by reason of an Event of Default),
the Trustee or its designee may thereupon assume all of the rights and, except
to the extent such obligations arose prior to the date of assumption,
obligations of the Master Servicer or the Special Servicer, as the case may
be, under such agreement or (except with respect only to the Sub-Servicing
Agreement in effect as of the date of this Agreement between the Master
Servicer and Chase Manhattan) 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 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 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 any of the Rating Agencies (i) reduces the rating assigned
to one or more Classes of the respective Certificates as a result of the
sub-servicing of the Mortgage Loans by the Sub-Servicer, or (ii) advises the
Master Servicer or the Trustee in writing that it will cause a qualification,
downgrade or withdrawal of such rating due to the continued servicing by the
Sub-Servicer.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall remain obligated and liable to the Trustee and
the Certificateholders for the performance of their respective obligations and
duties under this Agreement in accordance with the provisions hereof to the
same extent and under the same terms and conditions as if each alone were
servicing and administering the Mortgage Loans or REO Properties for which it
is responsible.
(f) The Special Servicer shall not enter into a Sub-Servicing
Agreement unless Fitch has confirmed in writing that the execution of such
agreement will not result in a qualification, downgrade, or withdrawal of the
then-current ratings on the outstanding Certificates or such Sub-Servicing
Agreement relates to a Mortgage Loan or Mortgage Loans (along with any
Mortgage Loans previously sub-serviced pursuant to this section) that
represents less than 25% of the outstanding principal balance of all Specially
Serviced Mortgage Loans. The Special Servicer shall comply with the terms of
each such Sub-Servicing Agreement to the extent the terms thereof are not
inconsistent with the terms of this Agreement and the Special Servicer's
obligations hereunder.
SECTION 3.23. Representations and Warranties of Master Servicer and
Special Servicer.
(a) The Master Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Depositor and the Special Servicer, as of the
Closing Date, that:
(i) The Master Servicer is a national banking association, duly
organized under the laws of the United States of America, and the
Master Servicer is in compliance with the laws of each State in
which any Mortgaged Property is located to the extent necessary to
perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master
Servicer's articles of association or by-laws or constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
material agreement or other material instrument to which it is a
party or by which it is bound.
(iii) The Master Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered
this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Master Servicer, enforceable
against the Master Servicer in accordance with the terms hereof,
subject to (A) applicable receivership, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally and the rights of creditors of banks, and (B)
general principles of equity, regardless of whether such enforcement
is considered in a proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Master
Servicer's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Master Servicer
to perform its obligations under this Agreement or the financial
condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer that
would prohibit the Master Servicer from entering into this Agreement
or, in the Master Servicer's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of the
Master Servicer to perform its obligations under this Agreement or
the financial condition of the Master Servicer, calculated on a
consolidated basis.
(vii) Each officer, director, employee, consultant or advisor
of the Master Servicer with responsibilities concerning the
servicing and administration of Mortgage Loans is covered by errors
and omissions insurance in the amounts and with the coverage as, and
to the extent, required by Section 3.07(c).
(viii) The net worth of the Master Servicer (or, in the case of
the initial Master Servicer, the consolidated net worth thereof and
of its direct or indirect parent), determined in accordance with
generally accepted accounting principles, is not less than
$15,000,000.
(ix) Any consent, approval, authorization or order of any court
or governmental agency or body required for the execution, delivery
and performance by the Master Servicer of or compliance by the
Master Servicer with this Agreement or the consummation of the
transactions contemplated by this Agreement has been obtained and is
effective.
(x) The Master Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
(b) The Special Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Depositor and the Master Servicer, as of the
Closing Date, that:
(i) The Special Servicer is a limited liability company validly
existing and in good standing under the laws of the State of
Delaware, and the Special Servicer is in compliance with the laws of
each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the
Special Servicer, and the performance and compliance with the terms
of this Agreement by the Special Servicer, will not violate the
Special Servicer's certificate of incorporation or constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
material agreement or other material instrument by which it is
bound.
(iii) The Special Servicer has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered
this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Special Servicer, enforceable
against the Special Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
rights generally, and (B) general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity
or at law.
(v) The Special Servicer is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the
Special Servicer's good faith and reasonable judgment, is likely to
affect materially and adversely either the ability of the Special
Servicer to perform its obligations under this Agreement or the
financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special Servicer that
would prohibit the Special Servicer from entering into this
Agreement or, in the Special Servicer's good faith and reasonable
judgment, is likely to materially and adversely affect either the
ability of the Special Servicer to perform its obligations under
this Agreement or the financial condition of the Special Servicer.
(vii) Each officer, director and employee of the Special
Servicer and each consultant or advisor of the Special Servicer with
responsibilities concerning the servicing and administration of
Mortgage Loans is covered by errors and omissions insurance in the
amounts and with the coverage required by Section 3.07(c).
(viii) Any consent, approval, authorization or order of any
court or governmental agency or body required for the execution,
delivery and performance by the Special Servicer of or compliance by
the Special Servicer with this Agreement or the consummation of the
transactions contemplated by this Agreement has been obtained and is
effective.
(ix) The Special Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
(c) The representations and warranties of the Master Servicer and
the Special Servicer, set forth in Sections 3.23(a) and (b), respectively,
shall survive the execution and delivery of this Agreement and shall inure to
the benefit of the Persons for whose benefit they were made for so long as the
Trust Fund remains in existence. Upon discovery by any party hereto of any
breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the other parties.
(d) The Master Servicer covenants that by August 31, 1999, any
custom-made software or hardware designed or purchased or licensed by the
Master Servicer and used by the Master Servicer in the course of the operation
or management of, or the compiling, reporting or generation of data required
by this Agreement will not contain any material deficiency (x) in the ability
of such software or hardware to identify correctly or perform calculations or
other processing with respect to dates after August 31, 1999 or (y) that would
cause such software or hardware to be fit no longer for the purpose for which
it was intended by reason of the changing of the date from 1999 to 2000. A
breach of the covenant set forth in this Section 3.23(d) shall constitute an
Event of Default subject to the grace period set forth in Section 7.01(a)(iv)
and termination shall be the sole remedy against the Master Servicer for the
breach of this covenant.
(e) The Special Servicer covenants that by August 31, 1999, any
custom-made software or hardware designed or purchased or licensed by the
Special Servicer and used by the Special Servicer in the course of the
operation or management of, or the compiling, reporting or generation of data
required by this Agreement will not contain any material deficiency (x) in the
ability of such software or hardware to identify correctly or perform
calculations or other processing with respect to dates after August 31, 1999
or (y) that would cause such software or hardware to be fit no longer for the
purpose for which it was intended by reason of the changing of the date from
1999 to 2000. A breach of the covenant set forth in this Section 3.23(e) shall
constitute an Event of Default and termination shall be the sole remedy
against the Special Servicer for the breach of this covenant.
SECTION 3.24. Sub-Servicing Agreement Representation and Warranty
(a) The Master Servicer, in such capacity, hereby represents and
warrants to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to the Depositor and the Special Servicer, as of the
Closing Date, that each Sub-Servicing Agreement satisfies the requirements for
such Sub-Servicing Agreements set forth in Sections 3.22(a) and the second
paragraph of 3.22(d) in all material respects.
SECTION 3.25. Designation of Controlling Class Representative
(a) The Holders (or, in the case of Book-Entry Certificates, the
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class shall be entitled in accordance
with this Section 3.25 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 6.11) or to replace an existing
Controlling Class Representative. Upon (i) the receipt by the Trustee of
written requests for the selection of a Controlling Class Representative from
the Holders (or, in the case of Book-Entry Certificates, the Certificate
Owners) of Certificates representing more than 50% of the Class Principal
Balance of the Controlling Class, (ii) the resignation or removal of the
Person acting as Controlling Class Representative or (iii) a determination by
the Trustee that the Controlling Class has changed, the Trustee shall promptly
notify the Depositor and the Holders (and, in the case of Book-Entry
Certificates, to the extent actually known to a Responsible Officer of the
Trustee or identified thereto by the Depository or the Depository
Participants, the Certificate Owners) of the Controlling Class that they may
select a Controlling Class Representative. Such notice shall set forth the
process for selecting a Controlling Class Representative, which shall be the
designation of the Controlling Class Representative by the Holders (or
Certificate Owners) of Certificates representing more than 50% of the Class
Principal Balance of the Controlling Class by a writing delivered to the
Trustee. No appointment of any Person as a Controlling Class Representative
shall be effective until such Person provides the Trustee with written
confirmation of its acceptance of such appointment, an address and telecopy
number for the delivery of notices and other correspondence and a list of
officers or employees of such Person with whom the parties to this Agreement
may deal (including their names, titles, work addresses and telecopy numbers).
(b) Within ten (10) Business Days (or as soon thereafter as
practicable if the Controlling Class consists of Book-Entry Certificates) of
receiving a request therefor from the Master Servicer or Special Servicer, the
Trustee shall deliver to the requesting party the identity of the Controlling
Class Representative and a list of each Holder (or, in the case of Book-Entry
Certificates, to the extent actually known to a Responsible Officer of the
Trustee or identified thereto by the Depository or the Depository
Participants, each Certificate Owner) of the Controlling Class, including, in
each case, names and addresses. With respect to such information, the Trustee
shall be entitled to conclusively rely on information provided to it by the
Depository, and the Master Servicer and the Special Servicer shall be entitled
to rely on such information provided by the Trustee with respect to any
obligation or right hereunder that the Master Servicer and the Special
Servicer may have to deliver information or otherwise communicate with the
Controlling Class Representative or any of the Holders (or, if applicable,
Certificate Owners) of the Controlling Class. In addition to the foregoing,
within two (2) Business Days of the selection, resignation or removal of a
Controlling Class Representative, the Trustee shall notify the other parties
to this Agreement of such event. The expenses incurred by the Trustee in
connection with obtaining information from the Depository or Depository
Participants with respect to any Book-Entry Certificate shall be expenses of
the Trust Fund payable out of the Collection Account pursuant to Section
3.05(a).
(c) A Controlling Class Representative may at any time resign as
such by giving written notice to the Trustee and to each Holder (or, in the
case of Book-Entry Certificates, Certificate Owner) of the Controlling Class.
The Holders (or, in the case of Book-Entry Certificates, the Certificate
Owners) of Certificates representing more than 50% of the Class Principal
Balance of the Controlling Class shall be entitled to remove any existing
Controlling Class Representative by giving written notice to the Trustee and
to such existing Controlling Class Representative.
(d) Once a Controlling Class Representative has been selected
pursuant to this Section 3.25 each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Trustee and each other
Holder (or, in the case of Book-Entry Certificates, Certificate Owner) of the
Controlling Class, in writing, of the resignation or removal of such
Controlling Class Representative.
(e) Any and all expenses of the Controlling Class Representative
shall be borne by the Holders (or, if applicable, the Certificate Owners) of
Certificates of the Controlling Class, pro rata according to their respective
Percentage Interests in such Class, and not by the Trust. Notwithstanding the
foregoing, if a claim is made against the Controlling Class Representative by
a Mortgagor with respect to this Agreement or any particular Mortgage Loan,
the Controlling Class Representative shall immediately notify the Trustee, the
Master Servicer and the Special Servicer, whereupon (if the Special Servicer
or the Trust Fund are also named parties to the same action and, in the sole
judgment of the Special Servicer, (i) the Controlling Class Representative had
acted in good faith, without negligence or willful misfeasance with regard to
the particular matter, and (ii) there is no potential for the Special Servicer
or the Trust Fund to be an adverse party in such action as regards the
Controlling Class Representative) the Special Servicer on behalf of the Trust
Fund shall, subject to Section 6.03, assume the defense of any such claim
against the Controlling Class Representative. This provision shall survive the
termination of this Agreement and the termination or resignation of the
Controlling Class Representative.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Paying Agent shall (except as
otherwise provided in Section 9.01), based on information provided by the
Master Servicer and the Special Servicer, apply amounts on deposit in the
Distribution Account, after payment of amounts payable from the Distribution
Account in accordance with Section 3.05(b)(ii) through (vii), for the
following purposes and in the following order of priority, in each case to the
extent of the remaining portion of the Available Distribution Amount:
(i) to distributions of interest to the Holders of the Senior
Certificates in an amount equal to, and pro rata in accordance with,
all Distributable Certificate Interest in respect of each Class of
Senior Certificates for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates;
(ii) to distributions of principal to the Holders of the Class
A-1 Certificates, in an amount (not to exceed the Class Principal
Balance of the Class A-1 Certificates outstanding immediately prior
to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date;
(iii) after the Class Principal Balance of the Class A-1
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class A-2 Certificates, in an amount (not to
exceed the Class Principal Balance of the Class A-2 Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of the Class A-1 Certificates pursuant to clause (ii)
above);
(iv) to distributions to the Holders of the Class A-1
Certificates and the Holders of the Class A-2 Certificates, pro rata
in accordance with, in an amount equal to, and in reimbursement of,
all Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to each such Class of Certificates and not
previously reimbursed;
(v) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(vi) after the Class Principal Balances of the Class A-1
Certificates and the Class A-2 Certificates have been reduced to
zero, to distributions of principal to the Holders of the Class B
Certificates, in an amount (not to exceed the Class Principal
Balance of the Class B Certificates outstanding immediately prior to
such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other
Class of Certificates pursuant to any prior clause of this Section
4.01(a)).
(vii) to distributions to the Holders of the Class B
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class B Certificates and not previously
reimbursed;
(viii) to distributions of interest to the Holders of the Class
C Certificates in an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(ix) after the Class Principal Balance of the Class B
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class C Certificates, in an amount (not to
exceed the Class Principal Balance of the Class C Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(x) to distributions to the Holders of the Class C
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class C Certificates and not previously
reimbursed;
(xi) to distributions of interest to the Holders of the Class D
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class D Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xii) after the Class Principal Balance of the Class C
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class D Certificates, in an amount (not to
exceed the Class Principal Balance of the Class D Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xiii) to distributions to the Holders of the Class D
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class D Certificates and not previously
reimbursed;
(xiv) to distributions of interest to the Holders of the Class
E Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class E Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xv) after the Class Principal Balance of the Class D
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class E Certificates, in an amount (not to
exceed the Class Principal Balance of the Class E Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xvi) to distributions to the Holders of the Class E
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class E Certificates and not previously
reimbursed;
(xvii) to distributions of interest to the Holders of the Class
F Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class F Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xviii) after the Class Principal Balance of the Class E
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class F Certificates, in an amount (not to
exceed the Class Principal Balance of the Class F Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xix) to distributions to the Holders of the Class F
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class F Certificates and not previously
reimbursed;
(xx) to distributions of interest to the Holders of the Class G
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class G Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxi) after the Class Principal Balance of the Class F
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class G Certificates, in an amount (not to
exceed the Class Principal Balance of the Class G Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxii) to distributions to the Holders of the Class G
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class G Certificates and not previously
reimbursed;
(xxiii) to distributions of interest to the Holders of Class H
Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class H Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxiv) after the Class Principal Balance of the Class G
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class H Certificates, in an amount (not to
exceed the Class Principal Balance of the Class H Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxv) to distributions to the Holders of the Class H
Certificates in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to such Class of Certificates and not
previously reimbursed;
(xxvi) to distributions of interest to the Holders of the Class
J Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class J Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxvii) after the Class Principal Balance of the Class H
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class J Certificates, in an amount (not to
exceed the Class Principal Balance of the Class J Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxviii) to distributions to the Holders of the Class J
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class J Certificates and not previously
reimbursed;
(xxix) to distributions of interest to the Holders of the Class
K Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class K Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxx) after the Class Principal Balance of the Class J
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class K Certificates, in an amount (not to
exceed the Class Principal Balance of the Class K Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxxi) to distributions to the Holders of the Class K
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class K Certificates and not previously
reimbursed;
(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; and
(xxxv) to distributions of interest to the Holders of the Class
M Certificates, in an amount equal to all Distributable Certificate
Interest in respect of the Class M Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(xxxvi) after the Class Principal Balance of the Class L
Certificates has been reduced to zero, to distributions of principal
to the Holders of the Class M Certificates, in an amount (not to
exceed the Class Principal Balance of the Class M Certificates
outstanding immediately prior to such Distribution Date) equal to
the entire Principal Distribution Amount for such Distribution Date
(net of any portion thereof distributed on such Distribution Date to
the Holders of any other Class of Certificates pursuant to any prior
clause of this Section 4.01(a));
(xxxvii) to distributions to the Holders of the Class M
Certificates, in an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any,
previously allocated to the Class M Certificates and not previously
reimbursed;
(xxxviii) to distributions of interest to the Holders of the
Class N Certificates, in an amount equal to all Distributable
Certificate Interest in respect of the Class N Certificates for such
Distribution Date and, to the extent not previously paid, for all
prior Distribution Dates;
(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 (xl) 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);
(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 (xlii) above;
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 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 Trustee shall withdraw from the
Distribution Account any amounts that represent Additional Interest actually
collected on the ARD Loans and any related REO Loans during the related
Collection Period and shall distribute: (i) 5% of such amounts to the Holders
of the Class IO Certificates; and (ii) 95% of such amounts among the Holders
of the Class A-1 Certificates, the Class A-2 Certificates, the Class B
Certificates, the Class C Certificates, the Class D Certificates, the Class E
Certificates and the Class F Certificates on a pro rata basis in accordance
with the respective initial 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
principal balance or notional amount, as the case may be, of a REMIC I Regular
Interest has been reduced to zero, the Holders of the Sequential Pay
Certificates (other than any Excluded Class thereof) and Class IO Certificates
remain entitled to any such distributions of Additional Interest, provided
that the Trustee's obligation is limited to distributions to the last
Certificateholder of record.
(c) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding
Certificates in such Class based on their respective Percentage Interests.
Except as otherwise provided below, all such distributions with respect to
each Class on each Distribution Date shall be made to the Certificateholders
of the respective Class of record at the close of business on the related
Record Date and shall be made by wire transfer of immediately available funds
to the account of any such Certificateholder at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Paying Agent with wiring instructions no less than five Business Days
prior to the related Record Date (which wiring instructions may be in the form
of a standing order applicable to all subsequent Distribution Dates), or
otherwise by check mailed to the address of such Certificateholder as it
appears in the Certificate Register. The final distribution on each
Certificate (determined, in the case of a Sequential Pay Certificate, without
regard to any possible future reimbursement of any Realized Loss or Additional
Trust Fund Expense previously allocated to such Certificate, but taking into
account possible future distributions of Additional Interest) will be made in
a like manner, but only upon presentation and surrender of such Certificate at
the offices of the Certificate Registrar or such other location specified in
the notice to Certificateholders of such final distribution. Prior to any
termination of the Trust Fund pursuant to Section 9.01, any distribution that
is to be made with respect to a Certificate in reimbursement of a Realized
Loss or Additional Trust Fund Expense previously allocated thereto, which
reimbursement is to occur after the date on which such Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Certificateholder that surrendered such
Certificate as such address last appeared in the Certificate Register or to
any other address of which the Paying Agent was subsequently notified in
writing. If such check is returned to the Paying Agent, the Paying Agent,
directly or through an agent, shall take such reasonable steps to contact the
related Holder and deliver such 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.
(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.
(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 Loan (or successor REO Loan) that will be outstanding
immediately following such Distribution Date; and
(iii) as deemed distributions in respect of the REMIC I Regular
Interests, in an amount equal to, pro rata in accordance with, and
in reimbursement of, any Realized Losses and Additional Trust Fund
Expenses (with compounded interest), previously allocated to each
such REMIC I Regular Interest.
Any Prepayment Premiums or Yield Maintenance Charges distributed to
any Class of Regular Certificates on any Distribution Date shall, in each
case, be deemed to have been distributed from REMIC I to REMIC II in respect
of the REMIC I Regular Interest corresponding to the prepaid Mortgage Loan or
REO Loan, as the case may be, in respect of which such premium or charge was
received.
SECTION 4.02. Statements to Certificateholders; CSSA Loan File
Report.
(a) On each Distribution Date, the Trustee shall forward by mail (or
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;
(vi) (a) the aggregate amount of P&I Advances made in respect
of such Distribution Date pursuant to Section 4.03(a), including,
without limitation, any amounts applied pursuant to Section
4.03(a)(ii), and the aggregate amount of 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, and (D) as to which
foreclosure proceedings have been commenced;
(xi) as to each Mortgage Loan referred to in the preceding
clause (x) above, (A) the loan number thereof, (B) the Stated
Principal Balance thereof immediately following such Distribution
Date, and (C) a brief description of any executed loan modification;
(xii) with respect to any Mortgage Loan as to which a
Liquidation Event occurred during the related Collection Period
(other than a payment in full), (A) the loan number thereof, (B) the
aggregate of all Liquidation Proceeds and other amounts received in
connection with such Liquidation Event (separately identifying the
portion thereof allocable to distributions on the Certificates), and
(C) the amount of any Realized Loss in connection with such
Liquidation Event;
(xiii) with respect to any REO Property included in the Trust
Fund as to which a Final Recovery Determination was made during the
related Collection Period, (A) the loan number of the related
Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and
other amounts received in connection with such Final Recovery
Determination (separately identifying the portion thereof allocable
to distributions on the Certificates), and (C) the amount of any
Realized Loss in respect of the related REO Loan in connection with
such Final Recovery Determination;
(xiv) the Accrued Certificate Interest and Distributable
Certificate Interest in respect of each Class of Regular
Certificates for such Distribution Date;
(xv) any unpaid Distributable Certificate Interest in respect
of each Class of Regular Certificates after giving effect to the
distributions made on such Distribution Date;
(xvi) the Pass-Through Rate for each Class of Regular
Certificates for such Distribution Date;
(xvii) the Principal Distribution Amount for such Distribution
Date, separately identifying the respective components thereof (and,
in the case of any Principal Prepayment or other unscheduled
collection of principal received during the related Collection
Period, the loan number for the related Mortgage Loan and the amount
of such prepayment or other collection of principal);
(xviii) the aggregate of all Realized Losses incurred during
the related Collection Period and all Additional Trust Fund Expenses
incurred during the related Collection Period;
(xix) the aggregate of all Realized Losses and Additional Trust
Fund Expenses that were allocated on such Distribution Date;
(xx) the Class Principal Balance of each Class of Regular
Certificates (other than the Class IO Certificates) and the
Component Notional Amount of each Component outstanding immediately
before and immediately after such Distribution Date, separately
identifying any reduction therein due to the allocation of Realized
Losses and Additional Trust Fund Expenses on such Distribution Date;
(xxi) the Certificate Factor for each Class of Regular
Certificates immediately following such Distribution Date;
(xxii) the aggregate amount of interest on P&I Advances paid to
the Master Servicer and the Trustee during the related Collection
Period in accordance with Section 4.03(d);
(xxiii) the aggregate amount of interest on Servicing Advances
paid to the Master Servicer, the Trustee and the Special Servicer
during the related Collection Period in accordance with Section
3.03(d);
(xxiv) the aggregate amount of servicing fees paid to the
Master Servicer and the Special Servicer during the related
Collection Period; and
(xxv) the loan number for each Required Appraisal Loan and any
related Appraisal Reduction Amount as of the related Determination
Date;
(xxvi) the original and then current credit support levels for
each Class of Regular Certificates;
(xxvii) the original and then current ratings for each Class of
Regular Certificates;
(xxviii) the aggregate amount of Prepayment Premiums and Yield
Maintenance Charges collected during the related Collection Period;
and
(xxix) the amounts, if any, actually distributed with respect
to the Class R-I Certificates, Class R-II Certificates 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).
The Trustee shall deliver or shall cause to be delivered on each
Distribution Date either electronically or by first class mail to each
Certificateholder, the Depositor, the Underwriters, each Rating Agency, the
Special Servicer and any other Person designated in writing by the Depositor
(by hard copy, on diskette or via such other electronic medium as is mutually
acceptable to the Trustee and the recipient) a copy of the following nine
reports or in the case of reports to Persons designated in writing by the
Depositor, any of the following nine reports delivered to it by the Master
Servicer pursuant to Section 3.12(c): (i) the Delinquent Loan Status Report,
(ii) the Historical Loss Estimate Report, (iii) the Historical Loan
Modification Report, (iv) the REO Status Report, (v) the Watch List, (vi) a
Loan Payoff Notification Report, (vii) a Comparative Financial Status Report,
(viii) an Operating Statement Analysis and (ix) an NOI Adjustment Worksheet.
The Trustee shall deliver or shall cause to be delivered on each Distribution
Date by first class mail (or by electronic transmission acceptable to the
recipient) to each Certificateholder, each Certificate Owner, the
Underwriters, the Depositor, each Rating Agency and each other Person that
received a Distribution Date Statement on such Distribution Date a hard copy
(or a copy in an electronic medium acceptable to the recipient) of the CSSA
Loan File Report and the CSSA Property File Report containing information
regarding each Mortgaged Property most recently received from the Master
Servicer. Absent manifest error, none of the Master Servicer or the Special
Servicer shall be responsible for the accuracy or completeness of any
information supplied to it by a borrower or third party that is included in
any reports, statements, materials or information prepared or provided by the
Master Servicer or the Special Servicer, as applicable. The Trustee shall not
be responsible absent manifest error for the accuracy or completeness of any
information supplied to it for delivery pursuant to this Section. Neither the
Trustee, the Master Servicer nor the Special Servicer shall have any
obligation to verify the accuracy or completeness of any information provided
by a Mortgagor or third party.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall, 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 and Unrestricted Servicer Reports
forwarded to the Holders of the Regular Certificates on such Distribution
Date.
If any Certificate Owner does not receive through the Depository or
any of its Depository Participants any of the statements, reports and/or other
written information described above in this Section 4.02(a) that it would
otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book
Entry Certificates, then the Trustee shall mail or cause the mailing of such
statements, reports and/or other written information to such Certificate Owner
upon the request of such Certificate Owner made in writing to the Corporate
Trust Office (accompanied by current verification of such Certificate Owner's
ownership interest). Such portion of such information as may be agreed upon by
the Depositor and the Trustee shall be furnished to any such Person via
overnight courier delivery or telecopy from the Trustee; provided that the
cost of such overnight courier delivery or telecopy shall be an expense of the
party requesting such information.
The Trustee shall only be obligated to deliver the statements,
reports and information contemplated by this Section 4.02(a) to the extent it
receives the necessary underlying information from the Special Servicer or
Master Servicer, as applicable, and shall not be liable for any failure to
deliver any thereof on the prescribed due dates, to the extent caused by
failure to receive timely such underlying information. Nothing herein shall
obligate the Trustee or the Master Servicer to violate any applicable law
prohibiting disclosure of information with respect to any Mortgagor and the
failure of the Trustee, Master Servicer or the Special Servicer to disseminate
information for such reason shall not be a breach hereof.
(b) Not later than 2:00 p.m. New York City time on the second
Business Day preceding each Distribution Date the Master Servicer shall
furnish to the Trustee, the Depositor, the Special Servicer and the
Underwriters, by electronic transmission (or in such other form to which the
Trustee or the Depositor, as the case may be, and the Master Servicer may
agree), with a hard copy of such transmitted information to follow promptly,
an accurate and complete CSSA Loan File Report providing the required
information for the Mortgage Loans as of such Determination Date. The
Depositor shall provide the information necessary for the CSSA set up file.
In the performance of its obligations set forth in Section 4.05 and
its other duties hereunder, the Trustee may conclusively rely on reports
provided to it by the Master Servicer, and the Trustee shall not be
responsible to recompute, recalculate or verify the information provided to it
by the Master Servicer. In the case of information to be furnished by the
Master Servicer to the Trustee pursuant to this Section 4.02(b), insofar as
such information is solely within the control of the Special Servicer, the
Master Servicer shall have no obligation to provide such information until it
has received such information from the Special Servicer, shall not be in
default hereunder due to a delay in providing the CSSA Loan File Report caused
by the Special Servicer's failure to timely provide any report required under
this Agreement and may, absent manifest error, conclusively rely on the
reports to be provided by the Special Servicer.
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 (000) 000-0000 (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, due or deemed due, as the case may be, in respect of the
Mortgage Loans (including, without limitation, Balloon Mortgage Loans
delinquent as to their respective Balloon Payments) and any REO Loans on their
respective Due Dates during the related Collection Period, in each case to the
extent such amount was not paid by or on behalf of the related Mortgagor or
otherwise collected (including as net income from REO Properties) as of the
close of business on the related Determination Date and (ii) with respect to
each Semi-Annual Mortgage Loan for which there is no Due Date in the month in
which such Distribution Date falls, the Semi-Annual Loan Interest Advance
Amount for such Semi-Annual Mortgage Loan and such Distribution Date;
provided, that, (x) if the Periodic Payment on any Mortgage Loan has been
reduced in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment granted or agreed to
by the Special Servicer pursuant to Section 3.20, or if the final maturity on
any Mortgage Loan shall be extended in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section
3.20, and the Periodic Payment due and owing during the extension period is
less than the related Assumed Scheduled Payment, then the Master Servicer or
the Trustee shall, as to such Mortgage Loan only, advance only the amount of
the Periodic Payment due and owing after taking into account such reduction
(net of related Servicing Fees) 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, shall rely on
the Master Servicer's determination that the P&I Advance would be a
Nonrecoverable Advance if the Trustee determines that it does not have
sufficient time to make such determination); provided, however, that if the
Master Servicer has failed to make a P&I Advance for reasons other than a
determination by the Master Servicer that such P&I Advance would be
Nonrecoverable Advance, the Trustee shall make such Advance within the time
periods required by Section 4.03(a) unless the Trustee, in good faith, makes a
determination prior to the times specified in Section 4.03(a) that such P&I
Advance would be a Nonrecoverable Advance. The Trustee in determining whether
or not a P&I Advance previously made is, or a proposed P&I Advance, if made,
would be, a Nonrecoverable Advance shall be subject to the standards
applicable to the Master Servicer hereunder.
(d) In connection with the recovery by the Master Servicer or the
Trustee of any P&I Advance out of the Certificate Account pursuant to Section
3.05(a), subject to the next sentence, the Master Servicer shall be entitled
to pay itself or the Trustee, as the case may be, out of any amounts then on
deposit in the Certificate Account, interest at the Reimbursement Rate in
effect from time to time, compounded annually, accrued on the amount of such
P&I Advance (to the extent made with its own funds) from the date made to but
not including the date of reimbursement such interest to be payable (i) out of
late payment charges and Penalty Interest collected on or in respect of the
related Mortgage Loan or REO Loan during the same Collection Period in which
such P&I Advance is reimbursed, 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.
(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 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 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 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. 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). The Master Servicer or the
Trustee shall have all the limitations upon liability and all the indemnities
for the actions and omissions of any such agent or attorney-in-fact that it
has for its own actions hereunder pursuant to Article VI or Article VIII
hereof, as applicable, and any such agent or attorney-in-fact shall have the
benefit of all the limitations upon liability, if any, and all the indemnities
provided to the Master Servicer under Section 6.03 or to the Trustee under
Sections 8.01, 8.02 and 8.05, as applicable.
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibit A; provided that any of the Certificates may be
issued with appropriate insertions, omissions, substitutions and variations,
and may have imprinted or otherwise reproduced thereon such legend or legends,
not inconsistent with the provisions of this Agreement, as may be required to
comply with any law or with rules or regulations pursuant thereto, or with the
rules of any securities market in which the Certificates are admitted to
trading, or to conform to general usage. The Certificates will be issuable in
registered form only; provided, however, that in accordance with Section 5.03
beneficial ownership interests in the Regular Certificates shall initially be
held and transferred through the book-entry facilities of the Depository. The
Regular Certificates will be issuable only in denominations corresponding to
Initial Certificate Principal Balances or Initial Certificate Notional
Amounts, as the case may be, as of the Closing Date of not less than $10,000
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 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 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) No transfer of a Subordinated Certificate or any interest
therein shall be made (A) to any employee benefit plan or other retirement
arrangement, including individual retirement accounts and annuities, Xxxxx
plans and collective investment funds and separate accounts in which such
plans, accounts or arrangements are invested, that is subject to ERISA or the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Subordinated Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan (including,
without limitation, any insurance company using assets in its general or
separate account that may constitute "plan assets" of a Plan); provided that
(i) such a transfer may be made to a Person using funds from an insurance
company general account with respect to any Class of Subordinated Certificates
which is eligible for exemptive relief under Section III of Prohibited
Transaction Class Exemption 95-60 ("PTE 95-60"), provided that, in the case of
a Definitive Certificate, the proposed transferee certifies to the Trustee
that the conditions of Sections I, III and IV of PTE 95-60 are satisfied with
respect to such transfer, and (ii) such a transfer may also be made with
respect to a Class F, Class G, Class H, Class J, Class K, Class L, Class M or
Class N Certificate (if Definitive Certificates are issue in respect thereof),
if the prospective transferee provides the Certificate Registrar with a
certification of facts and an Opinion of Counsel (upon which the Certificate
Registrar may conclusively rely) which establish to the reasonable
satisfaction of the Certificate Registrar that such transfer will not result
in a violation of Section 406 of ERISA or Section 4975 of the Code or result
in the imposition of an excise tax under Section 4975 of the Code. As a
condition to its registration of the transfer of a Subordinated Certificate,
the Certificate Registrar shall have the right to require the prospective
transferee of such Certificate, if it is not a Plan or Person described in
clause (B) of the preceding sentence, to execute a certification affidavit to
that effect in the form attached as Exhibit H hereto. Notwithstanding the
foregoing, for so long as any Class of Certificate constitutes a Class of
Book-Entry Certificates, each prospective transferee of such Certificate or
any interest therein shall be deemed to have represented to the Trustee, the
Depositor and the transferor of such Certificate (i) the information set forth
on Exhibit H, (ii) that it is using funds from an insurance company general
account which is eligible for exemptive relief under Section III of PTE 95-60
and the conditions of Section I, III and IV of PTE 95-60 are satisfied with
respect to such transfer or (iii) that the purchase, continued holding and
transfer of such Certificate or interest therein will not violate Section 406
of ERISA or Section 4975 of the Code or result in the imposition of an excise
tax under Section 4975 of the Code.
(d) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions
and to have irrevocably authorized the Paying Agent under clause (ii)(A) below
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Certificate Registrar under clause (ii)(B) below to negotiate
the terms of any mandatory disposition and to execute all instruments of
Transfer and to do all other things necessary in connection with any such
sale. The rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted
Transferee and shall promptly notify the Master Servicer, the
Paying Agent and the Certificate Registrar of any change or
impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Residual Certificate, the Certificate
Registrar shall require delivery to it, and shall not register
the Transfer of any Residual Certificate until its receipt of
an affidavit and agreement substantially in the form attached
hereto as Exhibit I-1 (in any case, a "Transfer Affidavit and
Agreement"), from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, and upon
which the Certificate Registrar may, in the absence of actual
knowledge by a Responsible Officer of either the Trustee or the
Certificate Registrar to the contrary, conclusively rely,
representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring
its Ownership Interest in the Residual Certificate that is the
subject of the proposed Transfer as a nominee, trustee or agent
for any Person that is not a Permitted Transferee, that for so
long as it retains its Ownership Interest in a Residual
Certificate, it will endeavor to remain a Permitted Transferee,
and that it has reviewed the provisions of this Section 5.02(d)
and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer
Affidavit and Agreement by a proposed Transferee under clause
(B) above, if a Responsible Officer of the Certificate
Registrar has actual knowledge that the proposed Transferee is
not a Permitted Transferee, no Transfer of an Ownership
Interest in a Residual Certificate to such proposed Transferee
shall be effected.
(D) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall agree (1) to require a
Transfer Affidavit and Agreement from any prospective
Transferee to whom such Person attempts to transfer its
Ownership Interest in such Residual Certificate and (2) not to
transfer its Ownership Interest in such Residual Certificate
unless it provides to the Certificate Registrar a certificate
substantially in the form attached hereto as Exhibit I-2
stating that, among other things, it has no actual knowledge
that such prospective Transferee is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership
Interest in a Residual Certificate, by purchasing an Ownership
Interest in such Certificate, agrees to give the Master
Servicer and the Trustee written notice that it is a
"pass-through interest holder" within the meaning of temporary
Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately
upon acquiring an Ownership Interest in a Residual Certificate,
if it is, or is holding an Ownership Interest in a Residual
Certificate on behalf of, a pass-through interest holder".
(ii) (A) If any purported Transferee shall become a Holder
of a Residual Certificate in violation of the provisions of
this Section 5.02(d), then the last preceding Holder of such
Residual Certificate that was in compliance with the provisions
of this Section 5.02(d) shall be restored, to the extent
permitted by law, to all rights as Holder thereof retroactive
to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Master Servicer or the
Certificate Registrar shall be under any liability to any
Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by this Section
5.02(d) or for making any payments due on such Certificate to
the Holder thereof or for taking any other action with respect
to such Holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder
of a Residual Certificate in violation of the restrictions in
this Section 5.02(d), then, to the extent that the retroactive
restoration of the rights of the preceding Holder of such
Residual Certificate as described in clause (ii)(A) above shall
be invalid, illegal or unenforceable, the Certificate Registrar
shall have the right, without notice to the Holder or any prior
Holder of such Residual Certificate, to cause the transfer of
such Residual Certificate to a Permitted Transferee on such
terms as the Certificate Registrar may choose. Such purported
Transferee shall promptly endorse and deliver such Residual
Certificate in accordance with the instructions of the
Certificate Registrar. Such Permitted Transferee may be the
Certificate Registrar itself or any Affiliate of the
Certificate Registrar. Any proceeds of such sale, net of the
commissions (which may include commissions payable to the
Certificate Registrar or its Affiliates), expenses and taxes
due, if any, will be remitted by the Paying Agent to such
purported Transferee. The terms and conditions of any sale
under this clause (ii)(B) shall be determined in the sole
discretion of the Certificate Registrar, and the Certificate
Registrar shall not be liable to any Person having an Ownership
Interest in a Residual Certificate as a result of its exercise
of such discretion.
(iii) The Certificate Registrar shall make available to
the Internal Revenue Service and to those Persons specified by
the REMIC Provisions any information available to it which is
necessary to compute any tax imposed (A) as a result of the
Transfer of an Ownership Interest in a Residual Certificate to
any Person who is a Disqualified Organization, including the
information described in Treasury regulations sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate and (B) as a result of
any regulated investment company, real estate investment trust,
common trust fund, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership
Interest in a Residual Certificate having as among its record
holders at any time any Person which is a Disqualified
Organization, and the Master Servicer and the Special Servicer
shall furnish to the Certificate Registrar all information in
its possession necessary for the Certificate Registrar to
discharge such obligation. The Person holding such Ownership
Interest shall be responsible for the reasonable compensation
of the Certificate Registrar, the Master Servicer and the
Special Servicer for providing such information.
(iv) The provisions of this Section 5.02(d) set forth
prior to this clause (iv) may be modified, added to or
eliminated, provided that there shall have been delivered to
the Certificate Registrar and the Master Servicer the
following:
(A) written confirmation from each Rating Agency to
the effect that the modification of, addition to or elimination
of such provisions will not cause such Rating Agency to
qualify, downgrade or withdraw its then-current rating of any
Class of Certificates; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Certificate Registrar and the Master
Servicer, obtained at the expense of the party seeking such
modification of, addition to or elimination of such provisions
(but in no event at the expense of the Trust 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.
(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 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.
(d) Notwithstanding any other provisions contained herein, neither
the Trustee nor the Certificate Registrar shall have any responsibility
whatsoever to monitor or restrict the transfer of ownership interests in any
Certificate (including but not limited to any Non-Registered Certificate or
any Subordinated Certificate) which interests are transferable through the
book-entry facilities of the Depository.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction
of the destruction, loss or theft of any Certificate, and (ii) there is
delivered to the Trustee and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of actual notice to the Trustee or the Certificate Registrar that
such Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate under this Section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee and the Certificate Registrar) connected therewith. Any
replacement Certificate issued pursuant to this Section shall constitute
complete and indefeasible evidence of ownership in the applicable REMIC
created hereunder, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agent of any of them may treat the Person in
whose name any Certificate is registered as of the related Record Date as the
owner of such Certificate for the purpose of receiving distributions pursuant
to Section 4.01 and may treat the person whose name each Certificate is
registered as of the date of determination as the owner of such Certificate
for all other purposes whatsoever and none of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar or any
agent of any of them shall be affected by notice to the contrary.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER
AND THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01. Liability of Depositor, Master Servicer and Special
Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
SECTION 6.02. Merger, Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer.
Subject to the following paragraph, the Depositor and the Special
Servicer shall each keep in full effect its existence, rights and franchises
as a corporation under the laws of the jurisdiction of its incorporation or
organization, and each will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage
Loans and to perform its respective duties under this Agreement, and the
Master Servicer shall keep in full effect its existence and rights as a
national banking association under the laws of the United States.
The Depositor, the Master Servicer or the Special Servicer may be
merged or consolidated with or into any Person, 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 representation, warranty or covenant
made herein by such party, or against any expense or liability specifically
required to be borne by such party without right of reimbursement pursuant to
the terms hereof, or against any liability which would otherwise be imposed by
reason of misfeasance, bad faith or negligence in the performance of
obligations or duties hereunder. The Depositor, the Master Servicer, the
Special Servicer and any director, officer, employee or agent of the
Depositor, the Master Servicer or the Special Servicer may rely in good faith
on any document of any kind which, prima facie, is properly executed and
submitted by any Person respecting any matters arising hereunder. The
Depositor, the Master Servicer, the Special Servicer and any director,
officer, employee or agent of the Depositor, the Master Servicer or the
Special Servicer shall be indemnified and held harmless by the Trust Fund
against any loss, liability or reasonable expense incurred in connection with
this Agreement or the Certificates (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); (iii)
incurred in connection with any breach of a representation, warranty or
covenant made herein; or (iv) incurred by reason of willful misfeasance, bad
faith or negligence in the performance of obligations or duties hereunder.
None of the Depositor, the Master Servicer or the Special Servicer shall be
under any obligation to appear in, prosecute or defend any legal action unless
such action is related to its respective duties under this Agreement and,
unless it is specifically required hereunder to bear the costs of such legal
action, in its opinion does not involve it in any ultimate expense or
liability; provided, however, that the Depositor, the Master Servicer or the
Special Servicer may in its discretion undertake any such action which it may
deem necessary or desirable with respect to the enforcement and/or protection
of the rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action, and any liability resulting therefrom, shall be expenses, costs
and liabilities of the Trust Fund, and the Depositor, the Master Servicer and
the Special Servicer shall be entitled to be reimbursed therefor from the
Certificate Account as provided in Section 3.05. In no event shall the Master
Servicer or the Special Servicer be liable or responsible for any action taken
or omitted to be taken by the other of them or by the Depositor, the Trustee
or any Certificateholder, subject to the provisions of the last paragraph of
Section 8.05.
SECTION 6.04. Resignation of Master Servicer and the Special
Servicer.
The Master Servicer and, subject to Section 6.09, the Special
Servicer may resign from the obligations and duties hereby imposed on it, upon
a determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with
any other activities carried on by it (the other activities of the Master
Servicer or the Special Servicer, as the case may be, so causing such a
conflict being of a type and nature carried on by the Master Servicer or the
Special Servicer, as the case may be, at the date of this Agreement). Any such
determination requiring the resignation of the Master Servicer or the Special
Servicer, as applicable, shall be evidenced by an Opinion of Counsel to such
effect which shall be delivered to the Trustee. Unless applicable law requires
the Master Servicer's or Special Servicer's resignation to be effective
immediately, and the Opinion of Counsel delivered pursuant to the prior
sentence so states, no such resignation shall become effective until the
Trustee or other successor shall have assumed the responsibilities and
obligations of the resigning party in accordance with Section 7.02 hereof. The
Master Servicer and the Special Servicer shall have the right to resign at any
other time provided that (i) a willing successor thereto has been found by the
Master Servicer or Special Servicer, as applicable (ii) each of the Rating
Agencies confirms in writing that the successor's appointment will not result
in a withdrawal, qualification or downgrade of any rating or ratings assigned
to any Class of Certificates, (iii) the resigning party pays all costs and
expenses in connection with such transfer, and (iv) the successor accepts
appointment prior to the effectiveness of such resignation. Neither the Master
Servicer nor the Special Servicer shall be permitted to resign except as
contemplated above in this Section 6.04. Notwithstanding the foregoing, the
Master Servicer's right to appoint any successor shall be subject to the
following. Prior to appointing any proposed successor ("Proposed Successor"),
the Master Servicer shall provide Chase Manhattan written notice (with a copy
to the Trustee) of the proposed resignation and the price to be paid to the
Master Servicer by the Proposed Successor for such appointment. Provided Chase
Manhattan satisfies the requirements under the Pooling and Servicing Agreement
for a successor Master Servicer, Chase Manhattan shall be entitled to become
the successor Master Servicer if within five Business Days of receipt of such
notice from the Master Servicer, Chase Manhattan executes and delivers to the
Master Servicer a commitment to accept the appointment at the price proposed
to be paid by the Proposed Successor and within 25 days of the notice delivers
to the Master Servicer: (a) the Rating Agency confirmations required by clause
(ii) above, (b) consideration in the amount that the Proposed Successor was
willing to pay to the Master Servicer for such appointment, and (c) an
assumption in writing (with a copy to the Trustee) of the obligations of the
Master Servicer under the Pooling and Servicing Agreement; provided that Chase
Manhattan shall have an additional period of time, not to exceed 45 days
following receipt of such notice from the Master Servicer, to deliver the
Rating Agency confirmations so long as Chase Manhattan has been using, and
continues to use, its best efforts to obtain such Rating Agency confirmations
and Chase Manhattan is "approved" by Fitch and Xxxxx'x as a master servicer of
commercial loans. If Chase Manhattan fails to execute and deliver to the
Master Servicer such commitment or deliver such items within such time period,
the Master Servicer may appoint the Proposed Successor.
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 exercise any right pursuant to Section 7.01 to terminate the
Master Servicer or the Special Servicer as a party to this Agreement. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Master Servicer or the Special Servicer and is not
obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
SECTION 6.06. Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer shall
each furnish such reports, certifications and information as are reasonably
requested by the Trustee in order to enable it to perform its duties
hereunder.
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably
requested by the Master Servicer in order to enable it to perform its duties
hereunder.
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate
with Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably
requested by the Special Servicer in order to enable it to perform its duties
hereunder.
SECTION 6.09. Designation of Special Servicer by the Controlling
Class.
The Holder or Holders of the Certificates evidencing a majority of
the Voting Rights allocated to the Controlling Class may at any time and from
time to time designate a Person meeting the requirements set forth in Section
6.02 (including, without limitation, Rating Agency confirmation) to serve as
Special Servicer hereunder and to replace any existing Special Servicer or any
Special Servicer that has resigned or otherwise ceased to serve as Special
Servicer. Such Holder or Holders may also select a Controlling Class
Representative from whom the Special Servicer will seek advice and approval
and take direction under certain circumstances, as described herein. Such
Holder or Holders shall so designate a Person to serve as replacement Special
Servicer by the delivery to the Trustee, the Master Servicer and the existing
Special Servicer of a written notice stating such designation. The Trustee
shall, promptly after receiving any such notice, deliver to the Rating
Agencies an executed Notice and Acknowledgment in the form attached hereto as
Exhibit J-1. If such Holders have not replaced the Special Servicer within 30
days of such Special Servicer's resignation or the date such Special Servicer
has ceased to serve in such capacity, the Trustee shall designate a successor
Special Servicer meeting the requirements set forth in Section 6.02. Any
designated Person shall become the Special Servicer, subject to satisfaction
of the other conditions set forth below, on the date that the Trustee shall
have received written confirmation from all of the Rating Agencies that the
appointment of such Person will not result in the qualification, downgrading
or withdrawal of the rating or ratings assigned to one or more Classes of the
Certificates. The appointment of such designated Person as Special Servicer
shall also be subject to receipt by the Trustee of (1) an Acknowledgment of
Proposed Special Servicer in the form attached hereto as Exhibit J-2, executed
by the designated Person, and (2) an Opinion of Counsel (at the expense of the
Person designated to become the Special Servicer) to the effect that the
designation of such Person to serve as Special Servicer is in compliance with
this Section 6.09 and all other applicable provisions of this Agreement, that
upon the execution and delivery of the Acknowledgment of Proposed Special
Servicer the designated Person shall be bound by the terms of this Agreement
and that this Agreement shall be enforceable against the designated Person in
accordance with its terms. Any existing Special Servicer shall be deemed to
have resigned simultaneously with such designated Person's becoming the
Special Servicer hereunder; provided, however, that the resigning Special
Servicer shall continue to be entitled to receive all amounts accrued or owing
to it under this Agreement on or prior to the effective date of such
resignation, whether in respect of Servicing Advances or otherwise, and it
shall continue to be entitled to the benefits of Section 6.03 notwithstanding
any such resignation. Such resigning Special Servicer shall cooperate with the
Trustee and the replacement Special Servicer in effecting the termination of
the resigning Special Servicer's responsibilities and rights hereunder,
including, without limitation, the transfer within two Business Days to the
replacement Special Servicer for administration by it of all cash amounts that
shall at the time be or should have been credited by the Special Servicer to
the Certificate Account or the REO Account or delivered to the Master Servicer
or that are thereafter received with respect to Specially Serviced Mortgage
Loans and REO Properties.
SECTION 6.10. Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer or an Affiliate of the Master Servicer or the
Special Servicer or an Affiliate of the Special Servicer may become the Holder
of (or, in the case of a Book-Entry Certificate, Certificate Owner with
respect to) any Certificate with (except as set forth in the definition of
"Certificateholder") the same rights it would have if it were not the Master
Servicer or the Special Servicer or an Affiliate thereof. If, at any time
during which the Master Servicer or the Special Servicer or an Affiliate of
the Master Servicer or the Special Servicer is the Holder of (or, in the case
of a Book-Entry Certificate, Certificate Owner with respect to) any
Certificate, the Master Servicer or the Special Servicer proposes to take
action (including for this purpose, omitting to take action) that (i) is not
expressly prohibited by the terms hereof and would not, in the Master
Servicer's or the Special Servicer's good faith judgment, violate the
Servicing Standard, and (ii) if taken, might nonetheless, in the Master
Servicer's or the Special Servicer's reasonable, good faith judgment, be
considered by other Persons to violate the Servicing Standard, then the Master
Servicer or the Special Servicer may (but need not) seek the approval of the
Certificateholders to such action by delivering to the Trustee a written
notice that (a) states that it is delivered pursuant to this Section 6.10, (b)
identifies the Percentage Interest in each Class of Certificates beneficially
owned by the Master Servicer or the Special Servicer or an Affiliate of the
Master Servicer or the Special Servicer, and (c) describes in reasonable
detail the action that the Master Servicer or the Special Servicer proposes to
take. The Trustee, upon receipt of such notice, shall forward it to the
Certificateholders (other than the Master Servicer and its Affiliates or the
Special Servicer and its Affiliates, as appropriate), together with such
instructions for response as the Trustee shall reasonably determine. If at any
time Certificateholders holding greater than 50% of the Voting Rights of all
Certificateholders (calculated without regard to the Certificates beneficially
owned by the Master Servicer or its Affiliates or the Special Servicer or its
Affiliates) shall have failed to object in writing to the proposal described
in the written notice, and if the Master Servicer or the Special Servicer
shall act as proposed in the written notice within thirty (30) days, such
action shall be deemed to comply with, but not modify, the Servicing Standard.
The Trustee shall be entitled to reimbursement from the Master Servicer or the
Special Servicer, as applicable, for the reasonable expenses of the Trustee
incurred pursuant to this paragraph. It is not the intent of the foregoing
provision that the Master Servicer or the Special Servicer be permitted to
invoke the procedure set forth herein with respect to routine servicing
matters arising hereunder, but rather in the case of unusual circumstances.
SECTION 6.11. The Controlling Class Representative.
The Controlling Class Representative will be entitled to advise the
Special Servicer with respect to the following actions of the Special
Servicer, and notwithstanding anything herein to the contrary except as
necessary or advisable to avoid an Adverse REMIC Event and except as set forth
in, and in any event subject to, the second paragraph of this Section 6.11,
the Special Servicer will not be permitted to take any of the following
actions as to which the Controlling Class Representative has objected in
writing within ten Business Days of being notified thereof (provided that if
such written objection has not been received by the Special Servicer within
such ten Business Day period, then the Controlling Class Representative's
approval will be deemed to have been given),provided, however, if the
Controlling Class Representative and the Special Servicer cannot agree on a
course of action within 60 days of the occurrence of the event under
discussion the Special Servicer shall implement its proposed course of action:
(i) any foreclosure upon or comparable conversion (which may
include acquisitions of an REO Property) of the ownership of
properties securing such of the Specially Serviced Mortgage Loans as
come into and continue in default;
(ii) any modification of a monetary term of a Mortgage Loan
other than a modification consisting of the extension of the
maturity date of a Mortgage Loan for one year or less;
(iii) any proposed sale of a defaulted Mortgage Loan or REO
Property (other than in connection with the termination of the Trust
Fund);
(iv) any determination to bring an REO Property into compliance
with applicable environmental laws or to otherwise address Hazardous
Materials located at an REO Property;
(v) any acceptance of substitute or additional collateral for a
Mortgage Loan;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance"
clause; and
(vii) any acceptance of an assumption agreement releasing a
borrower from liability under a Mortgage Loan.
In addition, the Controlling Class Representative may direct the
Special Servicer to take, or to refrain from taking, such other actions as the
Controlling Class Representative may deem advisable or as to which provision
is otherwise made herein; provided that notwithstanding anything herein to the
contrary no such direction, and no objection contemplated by the preceding
paragraph, may require or cause the Special Servicer to violate any provision
of this Agreement or the REMIC Provisions, including without limitation the
Special Servicer's obligation to act in accordance with the Servicing
Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund
or the Trustee to liability, or materially expand the scope of the Special
Servicer's responsibilities hereunder or cause the Special Servicer to act, or
fail to act, in a manner which in the reasonable judgment of the Special
Servicer is not in the best interests of the Certificateholders.
The Controlling Class Representative will have no liability to the
Certificateholders for any action taken, or for refraining from the taking of
any action, in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that the Controlling Class Representative will
not be protected against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of reckless disregard of obligations or duties. By its
acceptance of a Certificate, each Certificateholder confirms its understanding
that the Controlling Class Representative may take actions that favor the
interests of one or more Classes of the Certificates over other Classes of the
Certificates, and that the Controlling Class Representative may have special
relationships and interests that conflict with those of Holders of some
Classes of the Certificates, that the Controlling Class Representative may act
solely in the interests of the Holders of the Controlling Class, that the
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; or
(ii) any failure by the Special Servicer to deposit into the
REO Account or to deposit into, or to remit to the Master Servicer
for deposit into, the Certificate Account, any amount required to be
so deposited or remitted under this Agreement; or
(iii) any failure by the Master Servicer or the Special
Servicer to timely make any Servicing Advance required to be made by
it hereunder, which Servicing Advance remains unmade for a period of
five Business Days following the date on which notice shall have
been given to the Master Servicer or the Special Servicer, as the
case may be, by the Trustee as provided in Section 3.03(c); or
(iv) any failure on the part of the Master Servicer or the
Special Servicer duly to observe or perform in any material respect
any other of the covenants or agreements on the part of the Master
Servicer or the Special Servicer, as the case may be, contained in
this Agreement which continues unremedied for a period of 30 days
after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Master
Servicer and the Special Servicer, as the case may be, by any other
party hereto or to the Master Servicer or the Special Servicer, as
the case may be (with a copy to each other party hereto), by the
Holders of Certificates entitled to at least 25% of the Voting
Rights, provided, however, that with respect to any such failure
which is not curable within such 30-day period, the Master Servicer
or the Special Servicer, as the case may be, shall have an
additional cure period of thirty (30) days to effect such cure so
long as the Master Servicer or the Special Servicer, as the case may
be, has commenced to cure such failure within the initial 30-day
period and has provided the Trustee with an Officer's Certificate
certifying that it has diligently pursued, and is continuing to
pursue, a full cure; or
(v) any breach on the part of the Master Servicer or the
Special Servicer of any representation or warranty contained in this
Agreement that materially and adversely affects the interests of any
Class of Certificateholders and which continues unremedied for a
period of 30 days after the date on which notice of such breach,
requiring the same to be remedied, shall have been given to the
Master Servicer or the Special Servicer, as the case may be, by any
other party hereto or to the Master Servicer or the Special
Servicer, as the case may be (with a copy to each other party
hereto), by the Holders of Certificates entitled to at least 25% of
the Voting Rights, provided, however, that with respect to any
failure which is not curable within such 30-day period, the Master
Servicer or the Special Servicer, as the case may be, shall have an
additional cure period of thirty (30) days so long as the Master
Servicer or the Special Servicer, as the case may be, has commenced
to cure within the initial 30-day period and provided the Trustee
with an Officer's Certificate certifying that it has diligently
pursued, and is continuing to pursue, a full cure; or
(vi) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency
or similar law for the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy,
insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the
Master Servicer or the Special Servicer and such decree or order
shall have remained in force undischarged or unstayed for a period
of 60 days; or
(vii) the Master Servicer or the Special Servicer shall consent
to the appointment of a conservator, receiver, liquidator, trustee
or similar official in any bankruptcy, insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of
or relating to it or of or relating to all or substantially all of
its property; or
(viii) the Master Servicer or the Special Servicer shall admit
in writing its inability to pay its debts generally as they become
due, file a petition to take advantage of any applicable bankruptcy,
insolvency or reorganization statute, make an assignment for the
benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the
foregoing; or
(ix) the consolidated net worth of the Master Servicer and of
its direct or indirect parent, determined in accordance with
generally accepted accounting principles, shall decline to less than
$15,000,000; or
(x) the Trustee shall have received a written notice from a
Rating Agency (which the Trustee shall promptly forward to the
Master Servicer) to the effect that if the Master Servicer continues
to act in such capacity, the rating or ratings on one or more
Classes of Certificates will be qualified, downgraded or withdrawn
if such Master Servicer is not replaced and the Trustee shall not
have received a subsequent notice from such Rating Agency (within 90
days of the Master Servicer's receipt of the first notice)
indicating anything to the contrary (and upon the 91st day the
provisions of Section 7.01(b) shall apply); or
(xi) the Special Servicer is no longer satisfactory to any 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.
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) and
(xii) of subsection (a) above shall occur with respect to the Master Servicer
or the Special Servicer (in either case, for purposes of this Section 7.01(b),
the "Defaulting Party") and shall be continuing, then, and in each and every
such case, so long as such Event of Default shall not have been remedied, the
Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 25% of the 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) or (xi) of subsection (a) above shall occur
with respect to the Master Servicer or, if applicable, the Special Servicer
(in either case, under such circumstances, for purposes of this Section
7.01(b), the "Defaulting Party"), the Trustee shall, by notice in writing (to
be sent immediately by facsimile transmission) to the Defaulting Party (with a
copy of such notice to each other party hereto and the Rating Agencies),
terminate all of the rights and obligations (but not the liabilities for
actions and omissions occurring prior thereto) of the Defaulting Party under
this Agreement and in and to the Trust Fund, other than its rights, if any, as
a Certificateholder hereunder. From and after the receipt by the Defaulting
Party of such written notice of termination, all authority and power of the
Defaulting Party under this Agreement, whether with respect to the
Certificates (other than as a holder of any Certificate) or the Mortgage Loans
or otherwise, shall pass to and be vested in the Trustee pursuant to and under
this Section, and, without limitation, the Trustee is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary
or appropriate to effect the purposes of such notice of termination, whether
to complete the transfer and endorsement or assignment of the Mortgage Loans
and related documents, or otherwise. The Master Servicer and the Special
Servicer each agree that, if it is terminated pursuant to this Section
7.01(b), it shall promptly (and in any event no later than ten Business Days
subsequent to its receipt of the notice of termination) provide the Trustee
with all documents and records, including those in electronic form, requested
thereby to enable the Trustee to assume the Master Servicer's or Special
Servicer's, as the case may be, functions hereunder, and shall cooperate with
the Trustee in effecting the termination of the Master Servicer's or Special
Servicer's, as the case may be, responsibilities and rights hereunder,
including, without limitation, (i) the immediate transfer to the Trustee or a
successor Master or Special Servicer for administration by it of all cash
amounts that shall at the time be or should have been credited by the Master
Servicer to the Certificate Account, the Distribution Account, a Servicing
Account or a Reserve Account (if the Master Servicer is the Defaulting Party)
or that are thereafter received by or on behalf of it with respect to any
Mortgage Loan or (ii) the transfer within two Business Days to the Trustee or
a successor Special Servicer for administration by it of all cash amounts that
shall at the time be or should have been credited by the Special Servicer to
the REO Account, the Certificate Account, a Servicing Account or a Reserve
Account or delivered to the Master Servicer (if the Special Servicer is the
Defaulting Party) or that are thereafter received by or on behalf of it with
respect to any Mortgage Loan or REO Property (provided, however, that the
Master Servicer and the Special Servicer each shall, if terminated pursuant to
this Section 7.01(b), continue to be entitled to receive all amounts accrued
or owing to it under this Agreement on or prior to the date of such
termination, whether in respect of Advances or otherwise, and it shall
continue to be entitled to the benefits of Section 6.03 notwithstanding any
such termination). Any cost or expenses in connection with any actions to be
taken by the Master Servicer, the Special Servicer or the Trustee pursuant to
this paragraph shall be borne by the Defaulting Party and if not paid by the
Defaulting Party within 90 days after the presentation of reasonable
documentation of such costs and expenses, such expense shall be reimbursed by
the Trust Fund; provided, however, that the Defaulting Party shall not thereby
be relieved of its liability for such expenses. If and to the extent that the
Defaulting Party has not reimbursed such costs and expenses, the Trustee shall
have an affirmative obligation to take all reasonable actions to collect such
expenses on behalf of and at the expense of the Trust Fund. For purposes of
this Section 7.01 and of Section 7.03(b), the Trustee shall not be deemed to
have knowledge of an event which constitutes, or which with the passage of
time or notice, or both, would constitute an Event of Default described in
clauses (i)-(viii) of subsection (a) above unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless notice of any event which is in
fact such an Event of Default is received by the Trustee and such notice
references the Certificates, the Trust Fund or this Agreement.
The Master Servicer further agrees that if it is terminated pursuant
to this Section 7.01(b) or if it resigns under the circumstances permitted
under Section 6.04, or if for any other reason it is no longer the Master
Servicer, it shall promptly (and in any event no later than five Business Days
after its receipt of the notice of termination) (i) assign its rights under
the Semi-Annual Loan Swap Agreement to the Trustee, as successor Master
Servicer, or (ii) at the Depositor's expense (to the extent such expense
exceeds 0.135% per annum based on the aggregate principal balance of the
Semi-Annual Mortgage Loans), cause a qualified substitute counterparty
(possessing a long-term counterparty rating of at least "A+" by Fitch (or if
not rated by Fitch, then at least "A+" by Standard & Poor's) and at least
"Aa3" by Xxxxx'x) 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.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04 or receives a notice of termination pursuant
to Section 7.01, the Trustee shall, unless a successor is appointed pursuant
to Section 6.04, be the successor in all respects to the Master Servicer or
the Special Servicer, as the case may be, in its capacity as such under this
Agreement and the transactions set forth or provided for herein and shall have
all (and the former Master Servicer or the Special Servicer, as the case may
be, shall cease to have any) of the responsibilities, duties and liabilities
(except as provided in the next sentence) of the Master Servicer or the
Special Servicer, as the case may be, arising thereafter, including, without
limitation, if the Master Servicer is the resigning or terminated party, the
Master Servicer's obligation to make P&I Advances, including, without
limitation, in connection with any termination of the Master Servicer for an
Event of Default described in clause 7.01(a)(xi), the unmade P&I Advances that
gave rise to such Event of Default; provided, that if the Master Servicer is
the resigning or terminated party, and if after the Closing Date the Trustee
is prohibited by law or regulation from obligating itself to make P&I Advances
(as evidenced by an Opinion of Counsel delivered to the Depositor and the
Rating Agencies) the Trustee shall not be obligated to make such P&I Advances
and provided, further, that any failure to perform such duties or
responsibilities caused by the Master Servicer's or the Special Servicer's, as
the case may be, failure to provide information or monies required by Section
7.01 shall not be considered a default by the Trustee hereunder.
Notwithstanding anything contrary in this Agreement, the Trustee shall in no
event be held responsible or liable with respect to any of the representations
and warranties of the resigning or terminated party (other than the Trustee)
or for any losses incurred by such resigning or terminated party pursuant to
Section 3.06 hereunder nor shall the Trustee be required to purchase any
Mortgage Loan hereunder. As compensation therefor, the Trustee shall be
entitled to all fees and other compensation which the resigning or terminated
party would have been entitled to if the resigning or terminated party had
continued to act hereunder. Notwithstanding the above and subject to its
obligations under Section 3.22(d) and 7.01(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 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% of the Voting Rights
allocated to the Classes of Certificates affected by any Event of Default
hereunder may waive such Event of Default; provided, however, that an Event of
Default under clauses (i), (ii) , (ix) or (x) and (xii) of Section 7.01(a) may
be waived only by all of the Certificateholders of the affected Classes. Upon
any such waiver of an Event of Default, such Event of Default shall cease to
exist and shall be deemed to have been remedied for every purpose hereunder.
No such waiver shall extend to any subsequent or other Event of Default or
impair any right consequent thereon except to the extent expressly so waived.
Notwithstanding any other provisions of this Agreement, for purposes of
waiving any Event of Default pursuant to this Section 7.04, Certificates
registered in the name of the Depositor or any Affiliate of the Depositor
shall be entitled to Voting Rights with respect to the matters described
above.
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust, to take all actions now or hereafter existing at
law, in equity or by statute to enforce its rights and remedies and to protect
the interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim 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 the sole remedy shall be
termination of the Master Servicer or as otherwise expressly provided in this
Agreement, no remedy provided for by this Agreement shall be exclusive of any
other remedy, and each and every remedy shall be cumulative and in addition to
any other remedy, and no delay or omission to exercise any right or remedy
shall impair any such right or remedy or shall be deemed to be a waiver of any
Event of Default. Under no circumstances shall the rights provided to the
Trustee under this Section 7.05 be construed as a duty or obligation of the
Trustee.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs. Any permissive right of the Trustee contained in this
Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement (other than the Mortgage Files,
the review of which is specifically governed by the terms of Article II),
shall examine them to determine whether they conform to the requirements of
this Agreement to the extent specifically set forth herein. If any such
instrument is found not to conform to the requirements of this Agreement in a
material manner, the Trustee shall take such action as it deems appropriate to
have the instrument corrected. The Trustee shall not be responsible for the
accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Depositor or the
Master Servicer or the Special Servicer, and accepted by the Trustee in good
faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after
the curing of all such Events of Default which may have occurred,
the duties and obligations of the Trustee shall be determined solely
by the express provisions of this Agreement, the Trustee shall not
be liable except for the performance of such duties and obligations
as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against
the Trustee and, in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts if it was required
to do so;
(iii) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of Holders of Certificates
entitled to at least 25% of the Voting Rights relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Agreement; and
(iv) The protections, immunities and indemnities afforded to
the Trustee hereunder shall also be available to it in its capacity
as Paying Agent, Authenticating Agent, Certificate Registrar, REMIC
Administrator and Custodian.
SECTION 8.02. Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01 and Article X:
(i) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(ii) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or, except as provided in Section
10.01 or 10.02, to institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby; the Trustee shall not be required to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it; provided, however, that nothing contained herein shall, relieve the
Trustee of the obligation, upon the occurrence of an Event of Default which
has not been cured, to exercise such of the rights and powers vested in it by
this Agreement, and to use the same degree of care and skill in their exercise
as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs;
(iv) the Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by it
to be authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(v) prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, the Trustee
shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing to do so by Holders of Certificates entitled to at
least 25% of the Voting Rights; provided, however, that if the payment within
a reasonable time to the Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion of
the Trustee, not reasonably assured to the Trustee by the security afforded to
it by the terms of this Agreement, the Trustee may require reasonable
indemnity against such expense or liability as a condition to taking any such
action;
(vi) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys; provided, however, that the Trustee shall remain responsible for
all acts and omissions of such agents or attorneys within the scope of their
employment to the same extent as it is responsible for its own actions and
omissions hereunder;
(vii) the Trustee shall not be responsible for any act or omission
of the Master Servicer or the Special Servicer (unless the Trustee is acting
as Master Servicer or the Special Servicer) or the Depositor; and
(viii) Neither the Trustee nor the Certificate Registrar shall have
any obligation or duty to monitor, determine or inquire as to compliance with
any restriction on transfer imposed under Article V under this Agreement or
under applicable law with respect to any transfer of any Certificate or any
interest therein, other than to require delivery of the certification(s)
and/or Opinions of Counsel described in said Article applicable with respect
to changes in registration of record ownership of Certificates in the
Certificate Register and to examine the same to determine substantial
compliance with the express requirements of this Agreement. The Trustee and
Certificate Registrar shall have no liability for transfers, including
transfers made through the book entry facilities of the Depository or between
or among Depository Participants or beneficial owners of the Certificates,
made in violation of applicable restrictions except for its failure to perform
its express duties in connection with changes in registration of record
ownership in the Certificate Register.
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than
the statements attributed to the Trustee in Article II and Section 8.16 and
the signature of the Certificate Registrar and the Authenticating Agent set
forth on each outstanding Certificate, shall be taken as the statements of the
Depositor or the Master Servicer or the Special Servicer, as the case may be,
and the Trustee assumes no responsibility for their correctness. Except as set
forth in Section 8.16, the Trustee makes no representations as to the validity
or sufficiency of this Agreement or of any Certificate (other than as to the
signature of the Trustee set forth thereon) or of any Mortgage Loan or related
document. The Trustee shall not be accountable for the use or application by
the Depositor of any of the Certificates issued to it or of the proceeds of
such Certificates, or for the use or application of any funds paid to the
Depositor in respect of the assignment of the Mortgage Loans to the Trust
Fund, or any funds deposited in or withdrawn from the Certificate Account or
any other account by or on behalf of the Depositor, the Master Servicer or the
Special Servicer. The Trustee shall not be responsible for the accuracy or
content of any resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Depositor, the Master Servicer or
the Special Servicer, and accepted by the Trustee in good faith, pursuant to
this Agreement.
SECTION 8.04. Trustee May Own Certificates.
The Trustee or any agent of the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Certificates with the same
rights (except as otherwise provided in the definition of "Certificateholder")
it would have if it were not the Trustee or such agent.
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 reckless disregard of such obligations and duties, or as may arise from a
breach of any representation, warranty or covenant of the Trustee made herein.
The provisions of this Section 8.05(b) shall survive any resignation or
removal of the Trustee and appointment of a successor trustee.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be an association or a
corporation organized and doing business under the laws of the United States
of America or any State thereof or the District of Columbia, authorized under
such laws to exercise trust powers, having a combined capital and surplus of
at least $100,000,000 and subject to supervision or examination by federal or
state banking authority. If such association or corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such association or corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. The Trustee shall also be an
entity with a credit rating of at least "AA" by each Rating Agency other than
Moody's and "Aa3" by Moody's or such other rating that shall not result in the
qualification, downgrading or withdrawal of the rating or ratings assigned to
one or more Classes of the Certificates by any Rating Agency. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions
of this Section, the Trustee shall resign immediately in the manner and with
the effect specified in Section 8.07; provided, that if the Trustee shall
cease to be so eligible because its combined capital and surplus is no longer
at least $100,000,000 or its long-term unsecured debt rating no longer
conforms to the requirements of the immediately preceding sentence, and if the
Trustee proposes to the other parties hereto to enter into an agreement with
(and reasonably acceptable to) each of them, and if in light of such agreement
the Trustee's continuing to act in such capacity would not (as evidenced in
writing by each Rating Agency) cause any Rating Agency to qualify, downgrade
or withdraw any rating assigned thereby to any Class of Certificates, then
upon the execution and delivery of such agreement the Trustee shall not be
required to resign, and may continue in such capacity, for so long as none of
the ratings assigned by the Rating Agencies to the Certificates is adversely
affected thereby. The corporation or association serving as Trustee may have
normal banking and trust relationships with the Depositor, the Master
Servicer, the Special Servicer and their respective Affiliates.
SECTION 8.07. Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer and to all Certificateholders at their
respective addresses set forth in the Certificate Register. Upon receiving
such notice of resignation, the Master Servicer shall promptly appoint a
successor trustee meeting the requirements in Section 8.06 and acceptable to
the Depositor by written instrument, in duplicate, which instrument shall be
delivered to the resigning Trustee and to the successor trustee. A copy of
such instrument shall be delivered to the Depositor, the Special Servicer and
the Certificateholders by the Master Servicer. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicer, or if at any
time the Trustee shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or a receiver of the Trustee or of its property shall
be appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, or if the Trustee or Paying Agent (if different
than the Trustee) shall fail (other than by reason of the failure of either
the Master Servicer or the Special Servicer to timely perform its obligations
hereunder or as a result of other circumstances beyond the Trustee's
reasonable control), to timely deliver any report to be delivered by the
Trustee pursuant to Section 4.02 and such failure shall continue unremedied
for a period of five days, or if the Trustee or Paying Agent (if different
from the Trustee) fails to make distributions required pursuant to Section
3.05(b), 4.01 or 9.01, then the Depositor may remove the Trustee and appoint a
successor trustee, if necessary, acceptable to the Master Servicer by written
instrument, in duplicate, which instrument shall be delivered to the Trustee
so removed and to the successor trustee. A copy of such instrument shall be
delivered to the Master Servicer, the Special Servicer and the
Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of
the Voting Rights may at any time remove the Trustee and appoint a successor
trustee, if necessary, by written instrument or instruments, in triplicate,
signed by such Holders or their attorneys-in-fact duly authorized, one
complete set of which instruments shall be delivered to the Master Servicer,
one complete set to the Trustee so removed and one complete set to the
successor trustee so appointed. A copy of such instrument shall be delivered
to the Depositor, the Special Servicer and the remaining Certificateholders by
the successor so appointed. In the event that the Trustee is terminated or
removed pursuant to this Section 8.07, all of its rights and obligations under
this Agreement and in and to the Mortgage Loans shall be terminated, other
than any rights or obligations that accrued prior to the date of such
termination or removal (including the right to receive all fees, expenses and
other amounts (including, without limitation, P&I Advances and accrued
interest thereon) accrued or owing to it under this Agreement, with respect to
periods prior to the date of such termination or removal and no termination
without cause shall be effective until the payment of such amounts to the
Trustee).
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee
as provided in Section 8.08.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
the Special Servicer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee all Mortgage Files and related
documents and statements held by it hereunder (other than any Mortgage Files
at the time held on its behalf by a third-party Custodian, which Custodian
shall become the agent of the successor trustee), and the Depositor, the
Master Servicer, the Special Servicer and the predecessor trustee shall
execute and deliver such instruments and do such other things as may
reasonably be required to more fully and certainly vest and confirm in the
successor trustee all such rights, powers, duties and obligations, and to
enable the successor trustee to perform its obligations hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08, unless at the time of such acceptance such successor
trustee shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor and the
Certificateholders.
SECTION 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
entity succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such entity shall be eligible
under the provisions of Section 8.06, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be
located, the Master Servicer and the Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Trustee to act as co-trustee or co-trustees, jointly
with the Trustee, or separate trustee or separate trustees, of all or any part
of the Trust Fund, and to vest in such Person or Persons, in such capacity,
such title to the Trust Fund, or any part thereof, and, subject to the other
provisions of this Section 8.10, such powers, duties, obligations, rights and
trusts as the Master Servicer and the Trustee may consider necessary or
desirable. If the Master Servicer shall not have joined in such appointment
within 15 days after the receipt by it of a request to do so, or in case an
Event of Default in respect of the Master Servicer shall have occurred and be
continuing, the Trustee alone shall have the power to make such appointment.
No co-trustee or separate trustee hereunder shall be required to meet the
terms of eligibility as a successor trustee under Section 8.06 hereunder and
no notice to Holders of Certificates of the appointment of co-trustee(s) or
separate trustee(s) shall be required under Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10 all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or
imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as Trustee hereunder or as successor to the Master Servicer or the Special
Servicer hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article VIII. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Trustee. Every such instrument shall be filed with the
Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall cease to exist, become incapable of 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 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.
SECTION 8.13. Appointment of Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to Certificateholders hereunder. The Trustee shall cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in an Eligible Account
in trust for the benefit of the Certificateholders entitled thereto until such
sums shall be paid to the Certificateholders. All funds remitted by the
Trustee or the Master Servicer to any such Paying Agent for the purpose of
making distributions shall be paid to Certificateholders on each Distribution
Date and any amounts not so paid shall be returned on such Distribution Date
to the Trustee or the Master Servicer, as applicable. If the Paying Agent is
not the Trustee or the Master Servicer, the Trustee or the Master Servicer
shall remit to the Paying Agent on the Business Day prior to each Distribution
Date, by wire transfer in immediately available funds, the funds to be
distributed on such Distribution Date. Any Paying Agent shall be either a bank
or trust company or otherwise authorized under law to exercise corporate trust
powers and shall have a rating of at least "A" (or its equivalent) by each of
Fitch and Xxxxx'x, 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 Authenticating Agent, any provision or requirement herein requiring notice
or any information to be provided to the Authenticating Agent shall be
construed to require that such notice, information or documentation also be
provided to the Trustee.
SECTION 8.14. Appointment of REMIC Administrators.
(a) The Trustee may appoint at the Trustee's expense, one or more
REMIC Administrators, which shall be authorized to act on behalf of the
Trustee in performing the functions set forth in Sections 3.17, 10.01 and
10.02 herein. The Trustee shall cause any such REMIC Administrator to execute
and deliver to the Trustee an instrument in which such REMIC Administrator
shall agree to act in such capacity, with the obligations and responsibilities
herein. The appointment of a REMIC Administrator shall not relieve the Trustee
from any of its obligations hereunder, and the Trustee shall remain
responsible 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.
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.
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee that, if determined
adversely to the Trustee, would prohibit the Trustee from entering
into this Agreement or, in the Trustee's good faith and reasonable
judgment, is likely to materially and adversely affect the ability
of the Trustee to perform its obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any
court or governmental agency or body required for the execution,
delivery and performance by the Trustee of or compliance by the
Trustee with this Agreement or the consummation of the transactions
contemplated by this Agreement has been obtained and is effective.
(b) The Trustee covenants that by August 31, 1999, any custom-made
software or hardware designed or purchased or licensed by the Trustee and used
by the Trustee in the course of the operation or management of, or the
compiling, reporting or generation of data required by this Agreement will not
contain any deficiency (x) in the ability of such software or hardware to
identify correctly or perform calculations or other processing with respect to
dates after August 31, 1999 or (y) that would cause such software or hardware
to be 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, REO Status Report, Delinquent Loan Status Report,
Historical Loan Modification Report, Historical Loss Estimate Report and CSSA
Loan File Report on Form 8-K each month and any and all reports, statements
and information respecting the Trust Fund and/or the certificates required to
be filed on behalf of the Trust Fund under the Exchange Act as the Trustee may
be directed by the Depositor, until directed in writing by the Depositor to
discontinue such filings. Upon such filing with the Securities and Exchange
Commission, the Trustee shall promptly deliver to the Depositor and the Master
Servicer a copy of any such executed report, statement or information. The
Depositor shall promptly file, and exercise its reasonable best efforts to
obtain a favorable response to, no-action requests to, or requests for other
appropriate exemptive relief from, the Securities and Exchange Commission
regarding the usual and customary exemption from certain reporting
requirements granted to issuers of securities similar to the Certificates. The
Depositor agrees to indemnify and hold harmless the Trustee with respect to
any liability, cost or expenses, including reasonable attorneys' fees, arising
from the Trustee's execution of such reports, statements and information that
contain errors or omissions or is otherwise misleading, provided, however,
that if the indemnification provided for herein is invalid or unenforceable,
then the Depositor shall contribute to the amount paid by the Trustee as a
result of such liability in such amount as is necessary to limit the Trustee's
responsibility for any such payment to any amount resulting from its own
negligence or willful misconduct. The Trustee shall have no responsibility to
determine whether or not any filing may be required and shall not have any
responsibility to review or confirm in any way the accuracy or the sufficiency
of the contents of any such filing.
ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer and the Trustee (other than the
obligations of the Paying Agent on behalf of the Trustee to provide for and
make payments to Certificateholders as hereafter set forth) shall terminate
upon payment (or provision for payment) (i) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required hereunder to be so
paid on the Distribution Date following the earlier to occur of (A) the
purchase by the Depositor, the Master Servicer, the Special Servicer or the
Majority Subordinate Certificateholder of all Mortgage Loans and each REO
Property remaining in REMIC I at a price equal to (1) the aggregate Purchase
Price of all the Mortgage Loans included in REMIC I, plus (2) the appraised
value of each REO Property, if any, included in REMIC I, such appraisal to be
conducted by an Independent Appraiser selected by the Master Servicer and
approved by the Trustee, minus (3) if the purchaser is the Master Servicer,
the aggregate amount of unreimbursed Advances made by the Master Servicer,
together with any interest accrued and payable to the Master Servicer in
respect of unreimbursed Advances in accordance with Sections 3.03(d) and
4.03(d) and any unpaid Master Servicing Fees remaining outstanding (which
items shall be deemed to have been paid or reimbursed to the Master Servicer
in connection with such purchase), and (B) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan or
REO Property remaining in REMIC I, and (ii) to the Trustee, the Master
Servicer, the Special Servicer and the officers, directors, employees and
agents of each of them of all amounts which may have become due and owing to
any of them hereunder; provided, however, that in no event shall the Trust
Fund created hereby continue beyond the earlier of the Distribution Date
occurring in June 2031 and 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.
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.
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 affecting the purchase obtains at its own expense and delivers to
the Trustee and, in the case of the Depositor, to the Trustee and the Master
Servicer, an Opinion of Counsel, addressed to the Trustee and the Master
Servicer, to the effect that the failure of the Trust Fund to comply with the
requirements of this Section 9.02 will not result in the imposition of taxes
on "prohibited transactions" of REMIC I, REMIC II 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.
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 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
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 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 or the Trustee. At all times as may be
required by the Code, the REMIC Administrator shall make reasonable efforts to
ensure that substantially all of the assets of REMIC I, REMIC II 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
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.
(1) 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) 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 ARD Loans as separate assets of the Grantor Trust, and not of REMIC III,
as permitted by Treasury regulation 1.860G 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 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 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
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 obtained by or delivered to the Master
Servicer, the Special Servicer and the Trustee, adversely affect in any
material respect the interests of any Certificateholder; and provided further
that the Master Servicer, the Special Servicer and the Trustee shall have
first obtained from each Rating Agency written confirmation that such
amendment will not result in the qualification, downgrade or withdrawal of the
rating on any Class of Certificates.
(b) This Agreement may also be amended from time to time by the
agreement of the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates entitled to at least
51% of the Voting Rights allocated to the affected Classes for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments received
or advanced on Mortgage Loans that are required to be distributed on any
Certificate without the consent of the Holder of such Certificate, (ii) as
evidenced by an Opinion of Counsel obtained by or delivered to the Master
Servicer, the Special Servicer and the Trustee, adversely affect in any
material respect the interests of the Holders of any Class of Certificates in
a manner other than as described in (i) without the consent of the Holders of
all Certificates of such Class, (iii) modify the provisions of this Section
11.01 without the consent of the Holders of all Certificates then outstanding,
(iv) modify the provisions of Section 3.20 without the consent of the Holders
of Certificates entitled to all of the Voting Rights or (v) modify the
definition of Servicing Standard or the specified percentage of Voting Rights
which are required to be held by Certificateholders to consent or not to
object to any particular action pursuant to any provision of this Agreement
without the consent of the Holders of all Certificates then outstanding.
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 11.01, Certificates
registered in the name of the Depositor or any Affiliate of the Depositor
shall be entitled to the same Voting Rights with respect to matters described
above as they would if any other Person held such Certificates, so long as
neither the Depositor nor any of its Affiliates is performing servicing duties
with respect to any of the Mortgage Loans.
(c) Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
first have obtained or been furnished with an Opinion of Counsel (at the
expense of the party seeking such amendment) to the effect that (i) such
amendment or the exercise of any power granted to the Trustee, the Master
Servicer or the Special Servicer in accordance with such amendment will not
result in the imposition of a tax on any of REMIC I, REMIC II 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.
(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 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.
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-Chase Manhattan Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 1999-C2, facsimile number: 000-000-0000; (iii) in the case of the
Special Servicer, Banc One Mortgage 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 Banc One Mortgage Capital Markets, LLC,
0000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000, Attention: Xxxx X. Xxxxx,
telecopy number: (000) 000-0000; (iv) in the case of the Trustee, Norwest Bank
Minnesota, National Association, Corporate Trust Department, 00000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust Services
(CMBS)--First Union National Bank-Chase Manhattan Bank Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 1999-C2,
facsimile number 000-000-0000; (v) in the case of the Underwriters to each of
First Union Capital Markets Group, Xxx Xxxxx Xxxxx Xxxxxx, XX0, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000, Attention: Xxxxx X. Xxxxxxxxx, First Union National
Bank-Chase Manhattan Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2, facsimile number: 000-000-0000 and
Chase Securities Inc. Chase Securities Inc., 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxx, facsimile number 212 834
3813; (vi) in the case of the Rating Agencies, (A) Xxxxx'x Investors Service,
Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Attention: CMBS-Monitoring,
facsimile number 000-000-0000; and (B) Fitch IBCA, Inc., Xxx Xxxxx Xxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx, Attention: Commercial Mortgage-Backed Securities
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.
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.
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;
(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.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, in each
case as of the day and year first above written.
FIRST UNION COMMERCIAL MORTGAGE
SECURITIES, INC.
Depositor
By: /s/ Xxxxx Xxxxxxxxx
-----------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
Master Servicer
By: /s/ Xxxxxxx X. Xxxx
-----------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
BANC ONE MORTGAGE CAPITAL MARKETS, LLC
Special Servicer
By: /s/ Xxxxx X. Xxxxx XX
-----------------------
Name: Xxxxx X. Xxxxx XX
Title: Chief Operating Officer
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
Trustee
By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
EXHIBIT A
Forms of Certificates
EXHIBIT A-1-1
Form of Class A-1 Certificate
CLASS A-1 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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 Class Principal Balance of the
Rate: 6.36 % per annum Class A-1 Certificates as of the
Closing Date: $203,500,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: as of May 1, 1999 Balance of this Class A-1
Certificate as of the Closing
Date: $200,000,000
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AA6
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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.
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), Banc One Mortgage
Capital Markets, LLC (in such capacity, herein called the "Special Servicer",
which term includes any successor entity under the Agreement), and Norwest
Bank Minnesota, National Association (herein called the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class A-1 Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class A-1
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it
appears in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate, but taking into account possible
future distributions of Additional Interest) will be made in like manner, but
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date
on which this Certificate is surrendered as contemplated by the preceding
sentence, will be made by check mailed to the address of the Holder that
surrenders this Certificate as such address last appears in the Certificate
Register or to any such other address of which the Trustee is subsequently
notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such distribution is made upon this Certificate.
The Class A-1 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class A-1 Certificates are exchangeable for new Class A-1 Certificates
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class A-1
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-1 Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Class A-1 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect
thereto) or other liquidation of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Class A-1 Certificates; however, such right to purchase is subject to the
aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of the Trust Fund (or designated
portions thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: _______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By: _______________________________
Authorized Officer
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
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.
EXHIBIT A-1-2
Form of Class A-1 Certificate
CLASS A-1 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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 Class Principal Balance of the Class A-1
Rate: 6.36 % per annum Certificates as of the Closing Date:
$203,500,000
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of May 1, 1999 of this Class A-1
Certificate as of the Closing Date:
$3,500,000
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AA6
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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.
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), Banc One Mortgage
Capital Markets, LLC (in such capacity, herein called the "Special Servicer",
which term includes any successor entity under the Agreement), and Norwest
Bank Minnesota, National Association (herein called the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class A-1 Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class A-1
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it
appears in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate, but taking into account possible
future distributions of Additional Interest) will be made in like manner, but
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date
on which this Certificate is surrendered as contemplated by the preceding
sentence, will be made by check mailed to the address of the Holder that
surrenders this Certificate as such address last appears in the Certificate
Register or to any such other address of which the Trustee is subsequently
notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such distribution is made upon this Certificate.
The Class A-1 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class A-1 Certificates are exchangeable for new Class A-1 Certificates
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class A-1
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-1 Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Class A-1 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect
thereto) or other liquidation of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Class A-1 Certificates; however, such right to purchase is subject to the
aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of the Trust Fund (or designated
portions thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By: ______________________________
Authorized Officer
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
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.
EXHIBIT A-2-1
Form of Class A-2 Certificate
CLASS A-2 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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 Class Principal Balance of the Class A-2
Rate: 6.65% Certificates as of the Closing Date:
$673,747,967
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of May 1, 1999 of this Class A-2
Certificate as of the Closing Date:
$200,000,000
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate No. 1 CUSIP No. 337366 AB4
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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, THE CLASS A-1 CERTIFICATES MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that 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), Banc One Mortgage
Capital Markets, LLC (in such capacity, herein called the "Special Servicer",
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association (herein called the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class A-2 Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class A-2
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it
appears in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate, but taking into account possible
future distributions of Additional Interest) will be made in like manner, but
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date
on which this Certificate is surrendered as contemplated by the preceding
sentence, will be made by check mailed to the address of the Holder that
surrenders this Certificate as such address last appears in the Certificate
Register or to any such other address of which the Trustee is subsequently
notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such distribution is made upon this Certificate.
The Class A-2 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class A-2 Certificates are exchangeable for new Class A-2 Certificates
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class A-2
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-2 Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Class A-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect
thereto) or other liquidation of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Class A-2 Certificates; however, such right to purchase is subject to the
aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of the Trust Fund (or designated
portions thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By: ______________________________
Authorized Officer
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
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.
EXHIBIT A-2-2
Form of Class A-2 Certificate
CLASS A-2 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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 Class Principal Balance of the Class A-2
Rate: 6.65% Certificates as of the Closing Date:
$673,747,967
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of May 1, 1999 of this Class A-2
Certificate as of the Closing Date:
$200,000,000
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate No. 2 CUSIP No. 337366 AB4
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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, THE CLASS A-1 CERTIFICATES MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that 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), Banc One Mortgage
Capital Markets, LLC (in such capacity, herein called the "Special Servicer",
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association (herein called the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class A-2 Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class A-2
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it
appears in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate, but taking into account possible
future distributions of Additional Interest) will be made in like manner, but
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date
on which this Certificate is surrendered as contemplated by the preceding
sentence, will be made by check mailed to the address of the Holder that
surrenders this Certificate as such address last appears in the Certificate
Register or to any such other address of which the Trustee is subsequently
notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such distribution is made upon this Certificate.
The Class A-2 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class A-2 Certificates are exchangeable for new Class A-2 Certificates
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class A-2
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-2 Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Class A-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect
thereto) or other liquidation of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Class A-2 Certificates; however, such right to purchase is subject to the
aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of the Trust Fund (or designated
portions thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By: ______________________________
Authorized Officer
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
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.
EXHIBIT A-2-3
Form of Class A-2 Certificate
CLASS A-2 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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 Class Principal Balance of the Class A-2
Rate: 6.65% Certificates as of the Closing Date:
$673,747,967
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of May 1, 1999 of this Class A-2
Certificate as of the Closing Date:
$200,000,000
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate No. 3 CUSIP No. 337366 AB4
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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, THE CLASS A-1 CERTIFICATES MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that 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), Banc One Mortgage
Capital Markets, LLC (in such capacity, herein called the "Special Servicer",
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association (herein called the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class A-2 Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class A-2
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it
appears in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate, but taking into account possible
future distributions of Additional Interest) will be made in like manner, but
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date
on which this Certificate is surrendered as contemplated by the preceding
sentence, will be made by check mailed to the address of the Holder that
surrenders this Certificate as such address last appears in the Certificate
Register or to any such other address of which the Trustee is subsequently
notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such distribution is made upon this Certificate.
The Class A-2 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class A-2 Certificates are exchangeable for new Class A-2 Certificates
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class A-2
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-2 Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Class A-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect
thereto) or other liquidation of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Class A-2 Certificates; however, such right to purchase is subject to the
aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of the Trust Fund (or designated
portions thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By: ______________________________
Authorized Officer
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
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.
EXHIBIT A-2-4
Form of Class A-2 Certificate
CLASS A-2 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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 Class Principal Balance of the Class A-2
Rate: 6.65% Certificates as of the Closing Date:
$673,747,967
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of May 1, 1999 of this Class A-2
Certificate as of the Closing Date:
$73,747,967
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate No. 4 CUSIP No. 337366 AB4
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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, THE CLASS A-1 CERTIFICATES MAY BE REDUCED BY CERTAIN LOSSES AND
EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that 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), Banc One Mortgage
Capital Markets, LLC (in such capacity, herein called the "Special Servicer",
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association (herein called the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class A-2 Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class A-2
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it
appears in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate, but taking into account possible
future distributions of Additional Interest) will be made in like manner, but
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date
on which this Certificate is surrendered as contemplated by the preceding
sentence, will be made by check mailed to the address of the Holder that
surrenders this Certificate as such address last appears in the Certificate
Register or to any such other address of which the Trustee is subsequently
notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such distribution is made upon this Certificate.
The Class A-2 Certificates are issuable in fully registered form
only without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class A-2 Certificates are exchangeable for new Class A-2 Certificates
in authorized denominations evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class A-2
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class A-2 Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Class A-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect
thereto) or other liquidation of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Class A-2 Certificates; however, such right to purchase is subject to the
aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of the Trust Fund (or designated
portions thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By: ______________________________
Authorized Officer
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
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.
EXHIBIT A-4-1
Form of Class IO Certificate
CLASS IO MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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: Variable Aggregate Certificate Notional Amount
of all Class IO Certificates as of
the Closing Date:
$1,181,484,821
Date of Pooling and Servicing Certificate Notional Amount of this
Agreement: as of May 1, 1999 Class IO Certificate as of the Closing
Date: $200,000,000
Closing Date: May 24, 1999 Aggregate Stated Principal Balance
of the Mortgage Loans as of the
Cut-Off Date: $1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AC2
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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, AS AMENDED (THE "CODE").
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), Banc One Mortgage Capital Markets, LLC
(in such capacity, herein called the "Special Servicer", which term includes
any successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class IO Certificates on the applicable Distribution Date pursuant to
the Agreement. The Pass-Through Rate applicable to the Class IO Certificates
for each Distribution Date will equal the excess, if any, of the Weighted
Average Net Mortgage Rate for such Distribution Date over the weighted average
Pass-Through Rates then applicable to the Classes 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 Holder
hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
The Class IO Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class IO Certificates are exchangeable for new Class IO Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class IO
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class IO Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Class IO Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, 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.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
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 Officer
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
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.
EXHIBIT A-4-2
Form of Class IO Certificate
CLASS IO MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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: Variable Aggregate Certificate Notional Amount
of all Class IO Certificates as of
the Closing Date:
$1,181,484,821
Date of Pooling and Servicing Certificate Notional Amount of this
Agreement: as of May 1, 19990 Class IO Certificate as of the Closing
Date: $200,000,000
Closing Date: May 24, 1999 Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AC2
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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, AS AMENDED (THE "CODE").
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), Banc One Mortgage Capital Markets, LLC
(in such capacity, herein called the "Special Servicer", which term includes
any successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class IO Certificates on the applicable Distribution Date pursuant to
the Agreement. The Pass-Through Rate applicable to the Class IO Certificates
for each Distribution Date will equal the excess, if any, of the Weighted
Average Net Mortgage Rate for such Distribution Date over the weighted average
Pass-Through Rates then applicable to the Classes 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 Holder
hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
The Class IO Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class IO Certificates are exchangeable for new Class IO Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class IO
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class IO Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Class IO Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, 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.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
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 Officer
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
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.
EXHIBIT A-4-3
Form of Class IO Certificate
CLASS IO MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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: Variable Aggregate Certificate Notional Amount
of all Class IO Certificates as of
the Closing Date: $1,181,484,821
Date of Pooling and Servicing Certificate Notional Amount of this
Agreement: as of May 1, 1999 Class IO Certificate as of the Closing
Date: $200,000,000
Closing Date: May 24, 1999 Aggregate Stated Principal Balance
of the Mortgage Loans as of the
Cut-Off Date: $1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AC2
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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, AS AMENDED (THE "CODE").
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), Banc One Mortgage Capital Markets, LLC
(in such capacity, herein called the "Special Servicer", which term includes
any successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class IO Certificates on the applicable Distribution Date pursuant to
the Agreement. The Pass-Through Rate applicable to the Class IO Certificates
for each Distribution Date will equal the excess, if any, of the Weighted
Average Net Mortgage Rate for such Distribution Date over the weighted average
Pass-Through Rates then applicable to the Classes 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 Holder
hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
The Class IO Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class IO Certificates are exchangeable for new Class IO Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class IO
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class IO Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Class IO Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, 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.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
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 Officer
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
_____________________________________0
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to ______________________________
____________________________________________________________________________
for the account of _________________________________________________________
___________________________________________________________________________.
Distributions made by check (such check to be made payable
to ________________________________) and all applicable statements and notices
should be mailed to ________________________________________________________
___________________________________________________________________________.
This information is provided by ______________________, the
Assignee named above, or ______________, as its agent.
EXHIBIT A-4-4
Form of Class IO Certificate
CLASS IO MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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: Variable Aggregate Certificate Notional Amount
of all Class IO Certificates as of the
Closing Date: $1,181,484,821
Date of Pooling and Servicing Certificate Notional Amount of this
Agreement: as of May 1, 1999 Class IO Certificate as of the
Closing Date: $200,000,000
Closing Date: May 24, 1999 Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AC2
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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, AS AMENDED (THE "CODE").
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), Banc One Mortgage Capital Markets, LLC
(in such capacity, herein called the "Special Servicer", which term includes
any successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class IO Certificates on the applicable Distribution Date pursuant to
the Agreement. The Pass-Through Rate applicable to the Class IO Certificates
for each Distribution Date will equal the excess, if any, of the Weighted
Average Net Mortgage Rate for such Distribution Date over the weighted average
Pass-Through Rates then applicable to the Classes 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 Holder
hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
The Class IO Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class IO Certificates are exchangeable for new Class IO Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class IO
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class IO Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Class IO Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, 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.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
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 Officer
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
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.
EXHIBIT A-4-5
Form of Class IO Certificate
CLASS IO MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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: Variable Aggregate Certificate Notional Amount
of all Class IO Certificates as of the
Closing Date: $1,181,484,821
Date of Pooling and Servicing Certificate Notional Amount of this
Agreement: as of May 1, 1999 Class IO Certificate as of the
Closing Date: $200,000,000
Closing Date: May 24, 1999 Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AC2
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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, AS AMENDED (THE "CODE").
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), Banc One Mortgage Capital Markets, LLC
(in such capacity, herein called the "Special Servicer", which term includes
any successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class IO Certificates on the applicable Distribution Date pursuant to
the Agreement. The Pass-Through Rate applicable to the Class IO Certificates
for each Distribution Date will equal the excess, if any, of the Weighted
Average Net Mortgage Rate for such Distribution Date over the weighted average
Pass-Through Rates then applicable to the Classes 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 Holder
hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
The Class IO Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class IO Certificates are exchangeable for new Class IO Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class IO
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class IO Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Class IO Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, 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.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Certificate Registrar
By: ______________________________
Authorized Officer
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 Officer
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
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.
EXHIBIT A-4-6
Form of Class IO Certificate
CLASS IO MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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: Variable Aggregate Certificate Notional Amount
of all Class IO Certificates as of the
Closing Date: $1,181,484,821
Date of Pooling and Servicing Certificate Notional Amount of this
Agreement: as of May 1, 1999 Class IO Certificate as of the Closing
Date: $181,484,821
Closing Date: May 24, 1999 Aggregate Stated Principal Balance of
the Mortgage Loans as of the Cut-Off
Date: $1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AC2
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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, AS AMENDED (THE "CODE").
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), Banc One Mortgage Capital Markets, LLC
(in such capacity, herein called the "Special Servicer", which term includes
any successor entity under the Agreement) and Norwest Bank Minnesota, National
Association (herein called the "Trustee", which term includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions
of which is set forth hereafter. To the extent not defined herein, the
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class IO Certificates on the applicable Distribution Date pursuant to
the Agreement. The Pass-Through Rate applicable to the Class IO Certificates
for each Distribution Date will equal the excess, if any, of the Weighted
Average Net Mortgage Rate for such Distribution Date over the weighted average
Pass-Through Rates then applicable to the Classes 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 Holder
hereof of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
The Class IO Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class IO Certificates are exchangeable for new Class IO Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class IO
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class IO Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Class IO Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, 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.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
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 Officer
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
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.
EXHIBIT A-5
Form of Class B Certificate
CLASS B COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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 Class Principal Balance of the Class B
Rate: 6.80% Certificates as of the Closing Date:
$47,260,093
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of May 1, 1999 of this Class B Certificate as of the
Closing Date: $47,260,093
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AD0
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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 HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY
USING ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN
ASSETS" OF A PLAN), PROVIDED THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE
COMPANY GENERAL ACCOUNT IF (I) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE
RELIEF UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE
95-60"), AND (II) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE
SATISFIED WITH RESPECT TO SUCH TRANSFER. AS A CONDITION TO REGISTRATION OF
TRANSFER OF THIS CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT
TO REQUIRE ANY PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE, IF IT IS NOT A PLAN
OR PERSON DESCRIBED IN CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A
CERTIFICATION TO THAT EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IF THIS CERTIFICATE IS IN
BOOK-ENTRY FORM, ANY TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE
REPRESENTED TO THE TRUSTEE, THE DEPOSITOR AND THE TRANSFEROR TO THE EFFECT (X)
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSE (A) OR CLAUSE (B) OR (Y) AS
DESCRIBED IN CLAUSE (I) AND CLAUSE (II).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES
AND THE CLASS A-2 CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS C, CLASS D, CLASS E, CLASS F, CLASS G, 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 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), Banc One Mortgage
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. All distributions made under the Agreement on the Class B
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it
appears in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate, but taking into account possible
future distributions of Additional Interest) will be made in like manner, but
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date
on which this Certificate is surrendered as contemplated by the preceding
sentence, will be made by check mailed to the address of the Holder that
surrenders this Certificate as such address last appears in the Certificate
Register or to any such other address of which the Trustee is subsequently
notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such distribution is made upon this Certificate.
The Class B Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class B Certificates are exchangeable for new Class B Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class B Certificates
in authorized denominations evidencing the same aggregate Percentage Interest
will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class B Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class B
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect
thereto) or other liquidation of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Class B Certificates; however, such right to purchase is subject to the
aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of the Trust Fund (or designated
portions thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By: ______________________________
Authorized Officer
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
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.
EXHIBIT A-6
Form of Class C Certificate
CLASS C COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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 Class Principal Balance of the Class C
Rate: Variable Certificates as of the Closing Date:
$62,028,874
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of May 1, 1999 of this Class C Certificate as of the
Closing Date: $62,028,874
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AE8
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO CERTIFICATES AND THE CLASS B CERTIFICATES OF THE
SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY
USING ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN
ASSETS" OF A PLAN), PROVIDED THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE
COMPANY GENERAL ACCOUNT IF (I) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE
RELIEF UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE
95-60"), AND (II) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE
SATISFIED WITH RESPECT TO SUCH TRANSFER. AS A CONDITION TO REGISTRATION OF
TRANSFER OF THIS CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT
TO REQUIRE ANY PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE, IF IT IS NOT A PLAN
OR PERSON DESCRIBED IN CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A
CERTIFICATION TO THAT EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IF THIS CERTIFICATE IS IN
BOOK-ENTRY FORM, ANY TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE
REPRESENTED TO THE TRUSTEE, THE DEPOSITOR AND THE TRANSFEROR TO THE EFFECT (X)
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSE (A) OR CLAUSE (B) OR (Y) AS
DESCRIBED IN CLAUSE (I) AND CLAUSE (II).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES AND THE CLASS B CERTIFICATES OF THE SAME SERIES ARE
REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS D, CLASS E, CLASS F, CLASS G, 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), Banc One Mortgage
Capital Markets, LLC (in such capacity, herein called the "Special Servicer",
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association (herein called the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class C Certificates on the applicable Distribution Date pursuant to
the Agreement. The Pass-Through Rate applicable to the Class C Certificates as
of each Distribution Date will equal the lesser of 6.94% per annum and the
applicable Weighted Average Net Mortgage 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.
The Class C Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class C Certificates are exchangeable for new Class C Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class C Certificates
in authorized denominations evidencing the same aggregate Percentage Interest
will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class C Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class C
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect
thereto) or other liquidation of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Class C Certificates; however, such right to purchase is subject to the
aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of the Trust Fund (or designated
portions thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By: ______________________________
Authorized Officer
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
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.
EXHIBIT A-7
Form of Class D Certificate
CLASS D COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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 Class Principal Balance of the Class D
Rate: Variable Certificates as of the Closing Date:
$14,768,779
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of May 1, 1999 of this Class D Certificate as of the
Closing Date: $14,768,779
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AF5
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS B CERTIFICATES AND THE
CLASS C CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY
USING ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN
ASSETS" OF A PLAN), PROVIDED THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE
COMPANY GENERAL ACCOUNT IF (I) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE
RELIEF UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE
95-60"), AND (II) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE
SATISFIED WITH RESPECT TO SUCH TRANSFER. AS A CONDITION TO REGISTRATION OF
TRANSFER OF THIS CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT
TO REQUIRE ANY PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE, IF IT IS NOT A PLAN
OR PERSON DESCRIBED IN CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A
CERTIFICATION TO THAT EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IF THIS CERTIFICATE IS IN
BOOK-ENTRY FORM, ANY TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE
REPRESENTED TO THE TRUSTEE, THE DEPOSITOR AND THE TRANSFEROR TO THE EFFECT (X)
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSE (A) OR CLAUSE (B) OR (Y) AS
DESCRIBED IN CLAUSE (I) AND CLAUSE (II).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES AND THE CLASS C
CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN
REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE
MONTHLY AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE
CLASS E, CLASS F, CLASS G, 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), Banc One Mortgage
Capital Markets, LLC (in such capacity, herein called the "Special Servicer",
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association (herein called the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class D Certificates on the applicable Distribution Date pursuant to
the Agreement. The Pass-Through Rate applicable to the Class D Certificates as
of each Distribution Date will equal the lesser of 7.06% per annum and the
applicable Weighted Average Net Mortgage 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.
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 service charge will be imposed for any registration of transfer
or exchange of Class D Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class D
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect
thereto) or other liquidation of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Class D Certificates; however, such right to purchase is subject to the
aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of the Trust Fund (or designated
portions thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By: ______________________________
Authorized Officer
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
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.
EXHIBIT A-8
Form of Class E Certificate
CLASS E COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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 Class Principal Balance of the Class E
Rate: Variable Certificates as of the Closing Date:
$41,352,582
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of May 1, 1999 of this Class E Certificate as of the
Closing Date: $41,352,582
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AG3
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES AND THE CLASS D CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY
USING ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN
ASSETS" OF A PLAN), PROVIDED THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE
COMPANY GENERAL ACCOUNT IF (I) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE
RELIEF UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE
95-60"), AND (II) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE
SATISFIED WITH RESPECT TO SUCH TRANSFER. AS A CONDITION TO REGISTRATION OF
TRANSFER OF THIS CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT
TO REQUIRE ANY PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE, IF IT IS NOT A PLAN
OR PERSON DESCRIBED IN CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A
CERTIFICATION TO THAT EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IF THIS CERTIFICATE IS IN
BOOK-ENTRY FORM, ANY TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE
REPRESENTED TO THE TRUSTEE, THE DEPOSITOR AND THE TRANSFEROR TO THE EFFECT (X)
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSE (A) OR CLAUSE (B) OR (Y) AS
DESCRIBED IN CLAUSE (I) AND CLAUSE (II).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C CERTIFICATES
AND THE CLASS D CERTIFICATES OF THE SAME SERIES ARE REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L,
CLASS M AND CLASS N CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class E Certificate (obtained by
dividing the principal amount of this Class E Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount
of all the Class E Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all
the Class E Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among First
Union Commercial Mortgage Securities, Inc. (herein called the "Depositor",
which term includes any successor entity under the Agreement), First Union
National Bank (in such capacity, herein called the "Master Servicer", which
term includes any successor entity under the Agreement), Banc One Mortgage
Capital Markets, LLC (in such capacity, herein called the "Special Servicer",
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association (herein called the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class E Certificates on the applicable Distribution Date pursuant to
the Agreement. The Pass-Through Rate applicable to the Class E Certificates on
each Distribution Date will equal the Weighted Average Net Mortgage Rate minus
0.10% per annum. The initial Pass-Through Rate applicable to the Class E
Certificates is 7.40% per annum. 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
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 service charge will be imposed for any registration of transfer
or exchange of Class E Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class E
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect
thereto) or other liquidation of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Class E Certificates; however, such right to purchase is subject to the
aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of the Trust Fund (or designated
portions thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By: ______________________________
Authorized Officer
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
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.
EXHIBIT A-9
Form of Class F Certificate
CLASS F COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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 Class Principal Balance of the Class F
Rate: Variable Certificates as of the Closing Date:
$17,722,535
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of May 1, 1999 of this Class F Certificate as of the
Closing Date: $17,722,535
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AH1
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE CAPITAL MARKETS, LLC OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS IO CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES AND THE CLASS E CERTIFICATES OF THE
SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY
USING ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN
ASSETS" OF A PLAN), PROVIDED THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE
COMPANY GENERAL ACCOUNT IF (I) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE
RELIEF UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE
95-60"), AND (II) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE
SATISFIED WITH RESPECT TO SUCH TRANSFER. AS A CONDITION TO REGISTRATION OF
TRANSFER OF THIS CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT
TO REQUIRE ANY PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE, IF IT IS NOT A PLAN
OR PERSON DESCRIBED IN CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A
CERTIFICATION TO THAT EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IF THIS CERTIFICATE IS IN
BOOK-ENTRY FORM, ANY TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE
REPRESENTED TO THE TRUSTEE, THE DEPOSITOR AND THE TRANSFEROR TO THE EFFECT (X)
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSE (A) OR CLAUSE (B) OR (Y) AS
DESCRIBED IN CLAUSE (I) AND CLAUSE (II).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES AND THE CLASS E CERTIFICATES OF THE
SAME SERIES ARE REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS G, CLASS H, CLASS J,
CLASS K, CLASS L, CLASS M AND CLASS N CERTIFICATES OF THE SAME SERIES IS
REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class F Certificate (obtained by
dividing the principal amount of this Class F Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount
of all the Class F Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all
the Class F Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among First
Union Commercial Mortgage Securities, Inc. (herein called the "Depositor",
which term includes any successor entity under the Agreement), First Union
National Bank (in such capacity, herein called the "Master Servicer", which
term includes any successor entity under the Agreement), Banc One Mortgage
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 Net Mortgage Rate minus
0.10% per annum. The initial Pass-Through Rate applicable to the Class F
Certificates is 7.40% per annum. All distributions made under the Agreement on
the Class F Certificates will be made by Norwest Bank Minnesota, National
Association, as paying agent (the "Paying Agent"), by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable
to all subsequent distributions), or otherwise by check mailed to the address
of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to this
Certificate, but taking into account possible future distributions of
Additional Interest) will be made in like manner, but only upon presentation
and surrender of this Certificate at the offices of the Certificate Registrar
or such other location specified in the notice to the Holder hereof of such
final distribution. Also notwithstanding the foregoing, any distribution that
may be made with respect to this Certificate in reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this
Certificate, which reimbursement is to occur after the date on which this
Certificate is surrendered as contemplated by the preceding sentence, will be
made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such distribution is made upon this Certificate.
The Class F Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class F Certificates are exchangeable for new Class F Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class F Certificates
in authorized denominations evidencing the same aggregate Percentage Interest
will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Class F Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class F
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect
thereto) or other liquidation of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Class F Certificates; however, such right to purchase is subject to the
aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of the Trust Fund (or designated
portions thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the
Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By: ______________________________
Authorized Officer
ASIGNMENT
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
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.
EXHIBIT A-10
Form of Class G Certificate
CLASS G COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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 Class Principal Balance of the Class G
Rate: 5.95% Certificates as of the Closing Date:
$41,352,582
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of May 1, 1999 of this Class G Certificate as of the
Closing Date: $41,352,582
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AJ7
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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 HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY
USING ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN
ASSETS" OF A PLAN), PROVIDED THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE
COMPANY GENERAL ACCOUNT IF (I) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE
RELIEF UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE
95-60"), AND (II) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE
SATISFIED WITH RESPECT TO SUCH TRANSFER. AS A CONDITION TO REGISTRATION OF
TRANSFER OF THIS CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT
TO REQUIRE ANY PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE, IF IT IS NOT A PLAN
OR PERSON DESCRIBED IN CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A
CERTIFICATION TO THAT EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IF THIS CERTIFICATE IS IN
BOOK-ENTRY FORM, ANY TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE
REPRESENTED TO THE TRUSTEE, THE DEPOSITOR AND THE TRANSFEROR TO THE EFFECT (X)
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSE (A) OR CLAUSE (B) OR (Y) AS
DESCRIBED IN CLAUSE (I) AND CLAUSE (II).
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, 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 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), Banc One Mortgage
Capital Markets, LLC (in such capacity, herein called the "Special Servicer",
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association (herein called the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class G Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class G
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it
appears in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate, but taking into account possible
future distributions of Additional Interest) will be made in like manner, but
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date
on which this Certificate is surrendered as contemplated by the preceding
sentence, will be made by check mailed to the address of the Holder that
surrenders this Certificate as such address last appears in the Certificate
Register or to any such other address of which the Trustee is subsequently
notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such distribution is made upon this Certificate.
The Class G Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class G Certificates are exchangeable for new Class G Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class G Certificates
in authorized denominations evidencing the same aggregate Percentage Interest
will be issued to the designated transferee or transferees.
No transfer of any Class G Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the
initial issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate
Registrar to the effect that such transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer,
the Trustee or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such transfer from the Certificateholder desiring to effect such transfer
and/or such Certificateholder's prospective transferee on which such Opinion
of Counsel is based. None of the Depositor, the Trustee or the Certificate
Registrar is obligated to 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.
Any transferee of this Certificate, if this Certificate is in
book-entry form, shall be deemed to represent to the transferor, the Trustee
and the Depositor that it is a QIB within the meaning of Rule 144A.
No service charge will be imposed for any registration of transfer
or exchange of Class G Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class 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 G Certificates; however, such right to purchase is subject to the
aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder 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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By: ______________________________
Authorized Officer
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
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.
EXHIBIT A-11
Form of Class H Certificate
CLASS H COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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 Class Principal Balance of the Class H
Rate: 5.95% Certificates as of the Closing Date:
$11,815,024
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of May 1, 1999 of this Class H Certificate as of the
Closing Date: $11,815,024
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AK4
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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 HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY
USING ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN
ASSETS" OF A PLAN), PROVIDED THAT (A) SUCH A TRANSFER MAY BE MADE TO AN
INSURANCE COMPANY GENERAL ACCOUNT IF (I) THIS CERTIFICATE IS ELIGIBLE FOR
EXEMPTIVE RELIEF UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 ("PTE 95-60"), AND (II) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE
95-60 ARE SATISFIED WITH RESPECT TO SUCH TRANSFER AND (B) SUCH A TRANSFER MAY
BE MADE IF THE PROSPECTIVE TRANSFEREE PROVIDES THE CERTIFICATE REGISTRAR WITH
A CERTIFICATION OF FACTS AND AN OPINION OF COUNSEL THAT ESTABLISH TO THE
REASONABLE SATISFACTION OF THE CERTIFICATE REGISTRAR THAT SUCH TRANSFER WILL
NOT RESULT IN A VIOLATION OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
OR RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER SECTION 4975 OF THE CODE.
AS A CONDITION TO REGISTRATION OF TRANSFER OF THIS CERTIFICATE, THE
CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE ANY PROSPECTIVE
TRANSFEREE OF THIS CERTIFICATE, IF IT IS NOT A PLAN OR PERSON DESCRIBED IN
CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A CERTIFICATION TO THAT
EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, THE CLASS E CERTIFICATES, THE CLASS F
CERTIFICATES AND THE CLASS G CERTIFICATES OF THE SAME SERIES ARE REDUCED TO
ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS J, CLASS K, CLASS L, CLASS M AND CLASS N
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Class H Certificate (obtained by
dividing the principal amount of this Class H Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount
of all the Class H Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all
the Class H Certificates in the Trust Fund created 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), Banc One Mortgage
Capital Markets, LLC (in such capacity, herein called the "Special Servicer",
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association (herein called the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class H Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class H
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it
appears in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate, but taking into account possible
future distributions of Additional Interest) will be made in like manner, but
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date
on which this Certificate is surrendered as contemplated by the preceding
sentence, will be made by check mailed to the address of the Holder that
surrenders this Certificate as such address last appears in the Certificate
Register or to any such other address of which the Trustee is subsequently
notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such distribution is made upon this Certificate.
The Class H Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class H Certificates are exchangeable for new Class H Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class H Certificates
in authorized denominations evidencing the same aggregate Percentage Interest
will be issued to the designated transferee or transferees.
No transfer of any Class H Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the
initial issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate
Registrar to the effect that such transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer,
the Trustee or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such transfer from the Certificateholder desiring to effect such transfer
and/or such Certificateholder's prospective transferee on which such Opinion
of Counsel is based. None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class H Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of any Class H
Certificate without registration or qualification. Any Class H
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class H Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result
if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No service charge will be imposed for any registration of transfer
or exchange of Class H Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class H
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect
thereto) or other liquidation of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Class H Certificates; however, such right to purchase is subject to the
aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder 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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class H Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By: ______________________________
Authorized Officer
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
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.
EXHIBIT A-12
Form of Class J Certificate
CLASS J COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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 Class Principal Balance of the Class J
Rate: 5.95% Certificates as of the Closing Date:
$11,815,023
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of May 1, 1999 of this Class J Certificate as of the
Closing Date: $11,815,023
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AL2
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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 HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY
USING ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN
ASSETS" OF A PLAN), PROVIDED THAT (A) SUCH A TRANSFER MAY BE MADE TO AN
INSURANCE COMPANY GENERAL ACCOUNT IF (I) THIS CERTIFICATE IS ELIGIBLE FOR
EXEMPTIVE RELIEF UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 ("PTE 95-60"), AND (II) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE
95-60 ARE SATISFIED WITH RESPECT TO SUCH TRANSFER AND (B) SUCH A TRANSFER MAY
BE MADE IF THE PROSPECTIVE TRANSFEREE PROVIDES THE CERTIFICATE REGISTRAR WITH
A CERTIFICATION OF FACTS AND AN OPINION OF COUNSEL THAT ESTABLISH TO THE
REASONABLE SATISFACTION OF THE CERTIFICATE REGISTRAR THAT SUCH TRANSFER WILL
NOT RESULT IN A VIOLATION OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
OR RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER SECTION 4975 OF THE CODE.
AS A CONDITION TO REGISTRATION OF TRANSFER OF THIS CERTIFICATE, THE
CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE ANY PROSPECTIVE
TRANSFEREE OF SUCH CERTIFICATE, IF IT IS NOT A PLAN OR PERSON DESCRIBED IN
CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A CERTIFICATION TO THAT
EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, 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 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), Banc One Mortgage
Capital Markets, LLC (in such capacity, herein called the "Special Servicer",
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association (herein called the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class J Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class J
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it
appears in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate, but taking into account possible
future distributions of Additional Interest) will be made in like manner, but
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date
on which this Certificate is surrendered as contemplated by the preceding
sentence, will be made by check mailed to the address of the Holder that
surrenders this Certificate as such address last appears in the Certificate
Register or to any such other address of which the Trustee is subsequently
notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such distribution is made upon this Certificate.
The Class J Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class J Certificates are exchangeable for new Class J Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class J Certificates
in authorized denominations evidencing the same aggregate Percentage Interest
will be issued to the designated transferee or transferees.
No transfer of any Class J Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the
initial issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate
Registrar to the effect that such transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer,
the Trustee or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such transfer from the Certificateholder desiring to effect such transfer
and/or such Certificateholder's prospective transferee on which such Opinion
of Counsel is based. None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class J Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of any Class J
Certificate without registration or qualification. Any Class J
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class J Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result
if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No service charge will be imposed for any registration of transfer
or exchange of Class J Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class J
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect
thereto) or other liquidation of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Class J Certificates; however, such right to purchase is subject to the
aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time 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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
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 Officer
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
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.
EXHIBIT A-13
Form of Class K Certificate
CLASS K COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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 Class Principal Balance of the Class K
Rate: 5.95% Certificates as of the Closing Date:
$11,815,024
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of May 1, 1999 of this Class K Certificate as of the
Closing Date: $11,815,024
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AM0
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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 HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY
USING ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN
ASSETS" OF A PLAN), PROVIDED THAT (A) SUCH A TRANSFER MAY BE MADE TO AN
INSURANCE COMPANY GENERAL ACCOUNT IF (I) THIS CERTIFICATE IS ELIGIBLE FOR
EXEMPTIVE RELIEF UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 ("PTE 95-60"), AND (II) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE
95-60 ARE SATISFIED WITH RESPECT TO SUCH TRANSFER AND (B) SUCH A TRANSFER MAY
BE MADE IF THE PROSPECTIVE TRANSFEREE PROVIDES THE CERTIFICATE REGISTRAR WITH
A CERTIFICATION OF FACTS AND AN OPINION OF COUNSEL THAT ESTABLISH TO THE
REASONABLE SATISFACTION OF THE CERTIFICATE REGISTRAR THAT SUCH TRANSFER WILL
NOT RESULT IN A VIOLATION OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
OR RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER SECTION 4975 OF THE CODE.
AS A CONDITION TO REGISTRATION OF TRANSFER OF THIS CERTIFICATE, THE
CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE ANY PROSPECTIVE
TRANSFEREE OF SUCH CERTIFICATE, IF IT IS NOT A PLAN OR PERSON DESCRIBED IN
CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A CERTIFICATION TO THAT
EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, 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 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), Banc One Mortgage
Capital Markets, LLC (in such capacity, herein called the "Special Servicer",
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association (herein called the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class K Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class K
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it
appears in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate, but taking into account possible
future distributions of Additional Interest) will be made in like manner, but
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date
on which this Certificate is surrendered as contemplated by the preceding
sentence, will be made by check mailed to the address of the Holder that
surrenders this Certificate as such address last appears in the Certificate
Register or to any such other address of which the Trustee is subsequently
notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such distribution is made upon this Certificate.
The Class K Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class K Certificates are exchangeable for new Class K Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class K Certificates
in authorized denominations evidencing the same aggregate Percentage Interest
will be issued to the designated transferee or transferees.
No transfer of any Class K Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the
initial issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate
Registrar to the effect that such transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer,
the Trustee or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such transfer from the Certificateholder desiring to effect such transfer
and/or such Certificateholder's prospective transferee on which such Opinion
of Counsel is based. None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class K Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of any Class K
Certificate without registration or qualification. Any Class K
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class K Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result
if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No service charge will be imposed for any registration of transfer
or exchange of Class K Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class K
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect
thereto) or other liquidation of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Class K Certificates; however, such right to purchase is subject to the
aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time 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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
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 Officer
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
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.
EXHIBIT A-14
Form of Class L Certificate
CLASS L COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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 Class Principal Balance of the Class L
Rate: 5.95% Certificates as of the Closing Date:
$11,815,023
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of May 1, 1999 of this Class L Certificate as of the
Closing Date: $11,815,023
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AN8
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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 HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY
USING ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN
ASSETS" OF A PLAN), PROVIDED THAT (A) SUCH A TRANSFER MAY BE MADE TO AN
INSURANCE COMPANY GENERAL ACCOUNT IF (I) THIS CERTIFICATE IS ELIGIBLE FOR
EXEMPTIVE RELIEF UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 ("PTE 95-60"), AND (II) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE
95-60 ARE SATISFIED WITH RESPECT TO SUCH TRANSFER AND (B) SUCH A TRANSFER MAY
BE MADE IF THE PROSPECTIVE TRANSFEREE PROVIDES THE CERTIFICATE REGISTRAR WITH
A CERTIFICATION OF FACTS AND AN OPINION OF COUNSEL THAT ESTABLISH TO THE
REASONABLE SATISFACTION OF THE CERTIFICATE REGISTRAR THAT SUCH TRANSFER WILL
NOT RESULT IN A VIOLATION OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
OR RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER SECTION 4975 OF THE CODE.
AS A CONDITION TO REGISTRATION OF TRANSFER OF THIS CERTIFICATE, THE
CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE ANY PROSPECTIVE
TRANSFEREE OF SUCH CERTIFICATE, IF IT IS NOT A PLAN OR PERSON DESCRIBED IN
CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A CERTIFICATION TO THAT
EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, 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 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), Banc One Mortgage
Capital Markets, LLC (in such capacity, herein called the "Special Servicer",
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association (herein called the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class L Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class L
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it
appears in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate, but taking into account possible
future distributions of Additional Interest) will be made in like manner, but
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date
on which this Certificate is surrendered as contemplated by the preceding
sentence, will be made by check mailed to the address of the Holder that
surrenders this Certificate as such address last appears in the Certificate
Register or to any such other address of which the Trustee is subsequently
notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such distribution is made upon this Certificate.
The Class L Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class L Certificates are exchangeable for new Class L Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class L Certificates
in authorized denominations evidencing the same aggregate Percentage Interest
will be issued to the designated transferee or transferees.
No transfer of any Class L Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the
initial issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate
Registrar to the effect that such transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer,
the Trustee or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such transfer from the Certificateholder desiring to effect such transfer
and/or such Certificateholder's prospective transferee on which such Opinion
of Counsel is based. None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class L Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of any Class L
Certificate without registration or qualification. Any Class L
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class L Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result
if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No service charge will be imposed for any registration of transfer
or exchange of Class L Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class L
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect
thereto) or other liquidation of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Class L Certificates; however, such right to purchase is subject to the
aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time 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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
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 Officer
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
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.
EXHIBIT A-15
Form of Class M Certificate
CLASS M COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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 Class Principal Balance of the Class M
Rate: 5.95% Certificates as of the Closing Date:
$11,815,024
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of May 1, 1999 of this Class M Certificate as of the
Closing Date: $11,815,024
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AP3
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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 HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY
USING ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN
ASSETS" OF A PLAN), PROVIDED THAT (A) SUCH A TRANSFER MAY BE MADE TO AN
INSURANCE COMPANY GENERAL ACCOUNT IF (I) THIS CERTIFICATE IS ELIGIBLE FOR
EXEMPTIVE RELIEF UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 ("PTE 95-60"), AND (II) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE
95-60 ARE SATISFIED WITH RESPECT TO SUCH TRANSFER AND (B) SUCH A TRANSFER MAY
BE MADE IF THE PROSPECTIVE TRANSFEREE PROVIDES THE CERTIFICATE REGISTRAR WITH
A CERTIFICATION OF FACTS AND AN OPINION OF COUNSEL THAT ESTABLISH TO THE
REASONABLE SATISFACTION OF THE CERTIFICATE REGISTRAR THAT SUCH TRANSFER WILL
NOT RESULT IN A VIOLATION OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
OR RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER SECTION 4975 OF THE CODE.
AS A CONDITION TO REGISTRATION OF TRANSFER OF THIS CERTIFICATE, THE
CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE ANY PROSPECTIVE
TRANSFEREE OF SUCH CERTIFICATE, IF IT IS NOT A PLAN OR PERSON DESCRIBED IN
CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A CERTIFICATION TO THAT
EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, 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 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), Banc One Mortgage
Capital Markets, LLC (in such capacity, herein called the "Special Servicer",
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association (herein called the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class M Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class M
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it
appears in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate, but taking into account possible
future distributions of Additional Interest) will be made in like manner, but
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date
on which this Certificate is surrendered as contemplated by the preceding
sentence, will be made by check mailed to the address of the Holder that
surrenders this Certificate as such address last appears in the Certificate
Register or to any such other address of which the Trustee is subsequently
notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such distribution is made upon this Certificate.
The Class M Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class M Certificates are exchangeable for new Class M Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class M Certificates
in authorized denominations evidencing the same aggregate Percentage Interest
will be issued to the designated transferee or transferees.
No transfer of any Class M Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the
initial issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate
Registrar to the effect that such transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer,
the Trustee or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such transfer from the Certificateholder desiring to effect such transfer
and/or such Certificateholder's prospective transferee on which such Opinion
of Counsel is based. None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class M Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of any Class M
Certificate without registration or qualification. Any Class M
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class M Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result
if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No service charge will be imposed for any registration of transfer
or exchange of Class M Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class M
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect
thereto) or other liquidation of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Class M Certificates; however, such right to purchase is subject to the
aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time 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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
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 Officer
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
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.
EXHIBIT A-16
Form of Class N Certificate
CLASS N COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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 Class Principal Balance of the Class N
Rate: 5.95% Certificates as of the Closing Date:
$20,676,291
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: as of May 1, 1999 of this Class N Certificate as of the
Closing Date: $20,676,291
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date:
$1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage Capital Markets, LLC
Certificate Xx. 0 XXXXX Xx. 000000 AQ1
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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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 HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR
WITH ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY
USING ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN
ASSETS" OF A PLAN), PROVIDED THAT (A) SUCH A TRANSFER MAY BE MADE TO AN
INSURANCE COMPANY GENERAL ACCOUNT IF (I) THIS CERTIFICATE IS ELIGIBLE FOR
EXEMPTIVE RELIEF UNDER SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 ("PTE 95-60"), AND (II) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE
95-60 ARE SATISFIED WITH RESPECT TO SUCH TRANSFER AND (B) SUCH A TRANSFER MAY
BE MADE IF THE PROSPECTIVE TRANSFEREE PROVIDES THE CERTIFICATE REGISTRAR WITH
A CERTIFICATION OF FACTS AND AN OPINION OF COUNSEL THAT ESTABLISH TO THE
REASONABLE SATISFACTION OF THE CERTIFICATE REGISTRAR THAT SUCH TRANSFER WILL
NOT RESULT IN A VIOLATION OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
OR RESULT IN THE IMPOSITION OF AN EXCISE TAX UNDER SECTION 4975 OF THE CODE.
AS A CONDITION TO REGISTRATION OF TRANSFER OF THIS CERTIFICATE, THE
CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT TO REQUIRE ANY PROSPECTIVE
TRANSFEREE OF SUCH CERTIFICATE, IF IT IS NOT A PLAN OR PERSON DESCRIBED IN
CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A CERTIFICATION TO THAT
EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES,
THE CLASS A-2 CERTIFICATES, THE CLASS B CERTIFICATES, THE CLASS C
CERTIFICATES, THE CLASS D CERTIFICATES, 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 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), Banc One Mortgage
Capital Markets, LLC (in such capacity, herein called the "Special Servicer",
which term includes any successor entity under the Agreement) and Norwest Bank
Minnesota, National Association (herein called the "Trustee", which term
includes any successor entity under the Agreement), a summary of certain of
the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made
on the 15th day of each month or, if such 15th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), provided,
however, that the Distribution Date will be no earlier than the fourth
Business Day following the Determination Date (as defined below) in the month
in which such Distribution Date occurs. With respect to each Distribution
Date, the Determination Date is the 11th day of each month or, if such 11th
day is not a Business Day, the Business Day immediately following (each, a
"Determination Date"). Distributions will be made commencing on the first
Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders
of the Class N Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class N
Certificates will be made by Norwest Bank Minnesota, National Association, as
paying agent (the "Paying Agent"), by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Certificateholder shall have
provided the Paying Agent with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions), or
otherwise by check mailed to the address of such Certificateholder as it
appears in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate, but taking into account possible
future distributions of Additional Interest) will be made in like manner, but
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date
on which this Certificate is surrendered as contemplated by the preceding
sentence, will be made by check mailed to the address of the Holder that
surrenders this Certificate as such address last appears in the Certificate
Register or to any such other address of which the Trustee is subsequently
notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such distribution is made upon this Certificate.
The Class N Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set
forth, Class N Certificates are exchangeable for new Class N Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class N Certificates
in authorized denominations evidencing the same aggregate Percentage Interest
will be issued to the designated transferee or transferees.
No transfer of any Class N Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the
initial issuance thereof or the initial transfer thereof by the Depositor, the
Underwriters or their respective affiliates), then the Certificate Registrar
shall refuse to register such transfer unless it receives either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel reasonably satisfactory to the Certificate
Registrar to the effect that such transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer,
the Trustee or the Certificate Registrar in their respective capacities as
such), together with the written certification(s) as to the facts surrounding
such transfer from the Certificateholder desiring to effect such transfer
and/or such Certificateholder's prospective transferee on which such Opinion
of Counsel is based. None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class N Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of any Class N
Certificate without registration or qualification. Any Class N
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class N Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result
if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No service charge will be imposed for any registration of transfer
or exchange of Class N Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class N
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC, transfers of interests in this
Certificate shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes whatsoever and
none of the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Paying Agent, the Certificate Registrar or any such agent shall be
affected by notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect
thereto) or other liquidation of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Class N Certificates; however, such right to purchase is subject to the
aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the aggregate Stated Principal Balance of the
Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder 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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
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 Officer
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
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.
EXHIBIT A-17
Form of Class R-I Certificate
CLASS R-I COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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 Percentage Interest evidenced by this
Agreement: as of May 1, 1999 Class R-I Certificate: 100%
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date: $1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage 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, THE CHASE MANHATTAN BANK, BANC ONE
MORTGAGE 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 HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE") (ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT,
A "PLAN"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY
INSURANCE COMPANY USING ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY
CONSTITUTE "PLAN ASSETS" OF A PLAN). AS A CONDITION TO REGISTRATION OF
TRANSFER OF THIS CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT
TO REQUIRE ANY PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE, IF IT IS NOT A PLAN
OR PERSON DESCRIBED IN CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A
CERTIFICATION TO THAT EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR 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), Banc One Mortgage 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, if any, required to be distributed to the
Holders of the Class R-I Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on this
Class R-I Certificate will be made by check mailed to the address of the
Person entitled thereto, as such name and address appear in the Certificate
Register. Notwithstanding the foregoing, the final distribution on this
Certificate will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such
final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
The Class R-I Certificates are issuable in fully registered form
only without coupons in minimum denominations representing Percentage
Interests specified in the Agreement. As provided in the Agreement and subject
to certain limitations therein set forth, Class R-I Certificates are
exchangeable for new Class R-I Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class R-I
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
No transfer of any Class R-I Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If a transfer of any R-I Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor, the Underwriters or their affiliates), then the Certificate
Registrar shall refuse to register such transfer unless it receives either:
(i) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the
Trustee or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
transfer from the Certificateholder desiring to effect such transfer and/or
such Certificateholder's prospective transferee on which such Opinion of
Counsel is based. None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class R-I Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of any Class R-I
Certificate without registration or qualification. Any Class R-I
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-I Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result
if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No transfer of this Class R-I Certificate or any interest therein
shall be made to (A) a Plan or (B) any Person who is directly or indirectly
purchasing the Class R-I Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan (including,
without limitation, any insurance company using assets in its general or
separate account that may constitute assets of a Plan). As a condition to its
registration of transfer of this Class R-I Certificate, the Certificate
Registrar shall have the right to require the prospective transferee of such
Certificate, if it is not a Plan or Person described in clause (B) of the
preceding sentence, to execute a certification to that effect substantially in
the form of Exhibit H to the Agreement.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of
the Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized Norwest Bank Minnesota, National Association, as paying
agent (the "Paying Agent"), under clause (ii)(A) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Certificate Registrar under clause (ii)(B) of such Section
5.02(d) to negotiate the terms of any mandatory sale and to execute all
instruments of Transfer and to do all other things necessary in connection
with any such sale. Each Person holding or acquiring any Ownership Interest in
this Certificate must be a Permitted Transferee and shall promptly notify the
Master Servicer, the Paying Agent and the Certificate Registrar of any change
or impending change in its status as a Permitted Transferee. In connection
with any proposed Transfer of any Ownership Interest in this Certificate, the
Certificate Registrar shall require delivery to it, and shall not register the
Transfer of this Certificate until its receipt of, an affidavit and agreement
substantially in the form attached as Exhibit I-1 to the Agreement (a
"Transfer Affidavit and Agreement") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing and
warranting, among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest in this
Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee, that for so long as it retains its Ownership Interest in
this Certificate, it will endeavor to remain a Permitted Transferee, and that
it has reviewed the provisions of Section 5.02(d) of the Agreement and agrees
to be bound by them. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if a Responsible Officer of the
Certificate Registrar has actual knowledge that the proposed Transferee is not
a Permitted Transferee, no Transfer of an Ownership Interest in this
Certificate to such proposed Transferee shall be effected.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership
Interest herein and (y) not to transfer its Ownership Interest unless it
provides to the Certificate Registrar a certificate substantially in the form
attached as Exhibit I-2 to the Agreement stating that, among other things, it
has no actual knowledge that such other Person is not a Permitted Transferee.
Each Person holding or acquiring an Ownership Interest in this Certificate, by
purchasing such Ownership Interest herein, agrees to give the Master Servicer
and the Trustee written notice that it is a "pass-through interest holder"
within the meaning of temporary Treasury regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership Interest, if it
is, or is holding such Ownership Interest on behalf of, a "pass-through
interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating
Agency to qualify, downgrade or withdraw its then-current ratings of any Class
of Certificates; and (b) an Opinion of Counsel, in form and substance
satisfactory to the Certificate Registrar and the Master Servicer, obtained at
the expense of the party seeking such modification of, addition to or
elimination of such provisions (but in no event at the expense of the Trust
Fund), to the effect that such modification of, addition to or elimination of
such provisions will not cause the Trust Fund to (x) cease to qualify as a
REMIC or (y) be subject to an entity-level tax caused by the transfer of this
Class R-I Certificate to a Person which is not a Permitted Transferee, or
cause a Person other than the prospective Transferee to be subject to a
REMIC-related tax caused by the transfer of this Class R-I Certificate to a
Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a
"Disqualified Organization" or a "Non-United States Person". A "Disqualified
Organization" is any of (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which
is a corporation if all of its activities are subject to tax and, except for
the FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any
organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter I of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381 of the Code and (v) any other Person so designated by the Trustee
based upon an Opinion of Counsel provided to it that the holding of an
Ownership Interest in a Class R-I Certificate by such Person may cause the
Trust Fund or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the
Transfer of an Ownership Interest in a Class R-I Certificate to such Person.
The terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity treated as a corporation or
a partnership for United States federal income tax purposes created or
organized in, or under the laws of, the United States, any state thereof or
the District of Columbia (unless, in the case of a partnership, Treasury
regulations are enacted that provide otherwise), an estate whose income from
sources without the United States is income for United States federal income
tax purposes regardless of its connection of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust, all within the meaning of Section 7701(a)(30) of the
Code.
No service charge will be imposed for any registration of transfer
or exchange of Class R-I Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Class R-I Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect
thereto) or other liquidation of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Certificates; however, such right to purchase is subject to the aggregate
Stated Principal Balance of the Mortgage Pool at the time of purchase being
less than 1% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of the Trust Fund (or designated
portions thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By: ______________________________
Authorized Officer
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
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall be made by check payable to
______________________________ and mailed to ______________________________
Applicable statements and notices should be mailed to
______________________________.
This information is provided by ______________________, the
Assignee named above, or ______________, as its agent.
EXHIBIT A-18
Form of Class R-II Certificate
CLASS R-II COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: as of May 1, 1999 Class R-II Certificate: 100%
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date: $1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage 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, THE CHASE MANHATTAN 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 HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE") (ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT,
A "PLAN"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY
INSURANCE COMPANY USING ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY
CONSTITUTE "PLAN ASSETS" OF A PLAN). AS A CONDITION TO REGISTRATION OF
TRANSFER OF THIS CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT
TO REQUIRE ANY PROSPECTIVE TRANSFEREE OF THIS CERTIFICATE, IF IT IS NOT A PLAN
OR PERSON DESCRIBED IN CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A
CERTIFICATION TO THAT EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A
CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR 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), Banc One Mortgage 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, if any, required to be distributed to the
Holders of the Class R-II Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on this
Class R-II Certificate will be made by check mailed to the address of the
Person entitled thereto, as such name and address appear in the Certificate
Register. Notwithstanding the foregoing, the final distribution on this
Certificate will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such
final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
The Class R-II Certificates are issuable in fully registered form
only without coupons in minimum denominations representing Percentage
Interests specified in the Agreement. As provided in the Agreement and subject
to certain limitations therein set forth, Class R-II Certificates are
exchangeable for new Class R-II Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class R-II
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
No transfer of any Class R-II Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If a transfer of any R-II Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor, the Underwriters or their affiliates), then the Certificate
Registrar shall refuse to register such transfer unless it receives either:
(i) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the
Trustee or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
transfer from the Certificateholder desiring to effect such transfer and/or
such Certificateholder's prospective transferee on which such Opinion of
Counsel is based. None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class R-II Certificates
under the Securities Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of any Class
R-II Certificate without registration or qualification. Any Class R-II
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-II Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result
if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No transfer of this Class R-II Certificate or any interest therein
shall be made to (A) a Plan or (B) any Person who is directly or indirectly
purchasing the Class R-II Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan (including,
without limitation, any insurance company using assets in its general or
separate account that may constitute assets of a Plan). As a condition to its
registration of transfer of this Class R-II Certificate, the Certificate
Registrar shall have the right to require the prospective transferee of such
Certificate, if it is not a Plan or Person described in clause (B) of the
preceding sentence, to execute a certification to that effect substantially in
the form of Exhibit H to the Agreement.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of
the Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized Norwest Bank Minnesota, National Organization, as
paying agent (the "Paying Agent"), under clause (ii)(A) of such Section
5.02(d) to deliver payments to a Person other than such Person and to have
irrevocably authorized the Certificate Registrar under clause (ii)(B) of such
Section 5.02(d) to negotiate the terms of any mandatory sale and to execute
all instruments of Transfer and to do all other things necessary in connection
with any such sale. Each Person holding or acquiring any Ownership Interest in
this Certificate must be a Permitted Transferee and shall promptly notify the
Master Servicer, the Paying Agent and the Certificate Registrar of any change
or impending change in its status as a Permitted Transferee. In connection
with any proposed Transfer of any Ownership Interest in this Certificate, the
Certificate Registrar shall require delivery to it, and shall not register the
Transfer of this Certificate until its receipt of, an affidavit and agreement
substantially in the form attached as Exhibit I-1 to the Agreement (a
"Transfer Affidavit and Agreement") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing and
warranting, among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest in this
Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee, that for so long as it retains its Ownership Interest in
this Certificate, it will endeavor to remain a Permitted Transferee, and that
it has reviewed the provisions of Section 5.02(d) of the Agreement and agrees
to be bound by them. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if a Responsible Officer of the
Certificate Registrar has actual knowledge that the proposed Transferee is not
a Permitted Transferee, no Transfer of an Ownership Interest in this
Certificate to such proposed Transferee shall be effected.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership
Interest herein and (y) not to transfer its Ownership Interest unless it
provides to the Certificate Registrar a certificate substantially in the form
attached as Exhibit I-2 to the Agreement stating that, among other things, it
has no actual knowledge that such other Person is not a Permitted Transferee.
Each Person holding or acquiring an Ownership Interest in this Certificate, by
purchasing such Ownership Interest herein, agrees to give the Master Servicer
and the Trustee written notice that it is a "pass-through interest holder"
within the meaning of temporary Treasury regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership Interest, if it
is, or is holding such Ownership Interest on behalf of, a "pass-through
interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating
Agency to qualify, downgrade or withdraw its then-current ratings of any Class
of Certificates; and (b) an Opinion of Counsel, in form and substance
satisfactory to the Certificate Registrar and the Master Servicer, obtained at
the expense of the party seeking such modification of, addition to or
elimination of such provisions (but in no event at the expense of the Trust
Fund), to the effect that such modification of, addition to or elimination of
such provisions will not cause the Trust Fund to (x) cease to qualify as a
REMIC or (y) be subject to an entity-level tax caused by the Transfer of any
Class R-II Certificate to a Person which is not a Permitted Transferee, or
cause a Person other than the prospective Transferee to be subject to a
REMIC-related tax caused by the transfer of this Class R-II Certificate to a
Person which is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a
"Disqualified Organization" or a "Non-United States Person". A "Disqualified
Organization" is any of (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which
is a corporation if all of its activities are subject to tax and, except for
the FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any
organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter I of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381 of the Code and (v) any other Person so designated by the Trustee
based upon an Opinion of Counsel provided to it that the holding of an
Ownership Interest in a Class R-II Certificate by such Person may cause the
Trust Fund or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the
Transfer of an Ownership Interest in a Class R-II Certificate to such Person.
The terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity treated as a corporation or
a partnership for United States federal income tax purposes created or
organized in, or under the laws of, the United States, any state thereof or
the District of Columbia (unless, in the case of a partnership, Treasury
regulations are enacted that provide otherwise), an estate whose income from
sources without the United States is income for United States federal income
tax purposes regardless of its connection of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust, all within the meaning of Section 7701(a)(30) of the
Code.
No service charge will be imposed for any registration of transfer
or exchange of Class R-II Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Class R-II Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect
thereto) or other liquidation of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Certificates; however, such right to purchase is subject to the aggregate
Stated Principal Balance of the Mortgage Pool at the time of purchase being
less than 1% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of the Trust Fund (or designated
portions thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in
the within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By: ______________________________
Authorized Officer
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
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall be made by check payable to __________________
____________________________________________________________________________
and mailed to ______________________________________________________________
Applicable statements and notices should be mailed to
________________________.
This information is provided by __________________________, the
Assignee named above, or ________________________, as its agent.
EXHIBIT A-19
Form of Class R-III Certificate
CLASS R-III COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1999-C2
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
Date of Pooling and Servicing Percentage Interest evidenced by this
Agreement: as of May 1, 1999 Class R-III Certificate: 100%
Closing Date: May 24, 1999 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Cut-Off Date: $1,181,484,821
First Distribution Date:
June 17, 1999
Master Servicer: Trustee:
First Union National Bank Norwest Bank Minnesota, National
Association
Special Servicer:
Banc One Mortgage 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, THE CHASE MANHATTAN 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 HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE") (ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT,
A "PLAN"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF A PLAN (INCLUDING, WITHOUT LIMITATION, ANY
INSURANCE COMPANY USING ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY
CONSTITUTE "PLAN ASSETS" OF A PLAN). AS A CONDITION TO REGISTRATION OF
TRANSFER OF THIS CERTIFICATE, THE CERTIFICATE REGISTRAR SHALL HAVE THE RIGHT
TO REQUIRE ANY PROSPECTIVE TRANSFEREE OF SUCH CERTIFICATE, IF IT IS NOT A PLAN
OR PERSON DESCRIBED IN CLAUSE (B) OF THE PRECEDING SENTENCE, TO EXECUTE A
CERTIFICATION TO THAT EFFECT SUBSTANTIALLY IN THE FORM OF EXHIBIT H TO THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL
TAX RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE 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), Banc One Mortgage 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, if any, required to be distributed to the
Holders of the Class R-III Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on this
Class R-III Certificate will be made by check mailed to the address of the
Person entitled thereto, as such name and address appear in the Certificate
Register. Notwithstanding the foregoing, the final distribution on this
Certificate will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such
final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
purposes other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances
made, or certain expenses incurred, with respect to the Mortgage Loans and the
payment of interest on such advances and expenses.
The Class R-III Certificates are issuable in fully registered form
only without coupons in minimum denominations representing Percentage
Interests specified in the Agreement. As provided in the Agreement and subject
to certain limitations therein set forth, Class R-III Certificates are
exchangeable for new Class R-III Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to
the Certificate Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Class R-III
Certificates in authorized denominations evidencing the same aggregate
Percentage Interest will be issued to the designated transferee or
transferees.
No transfer of any Class R-III Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration or qualification. If a transfer of any R-III Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor, the Underwriters or their affiliates), then the Certificate
Registrar shall refuse to register such transfer unless it receives either:
(i) a certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit G-1 to the Agreement, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 or Exhibit G-3 to the Agreement; or
(ii) an Opinion of Counsel satisfactory to the Certificate Registrar to the
effect that such transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the
Trustee or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
transfer from the Certificateholder desiring to effect such transfer and/or
such Certificateholder's prospective transferee on which such Opinion of
Counsel is based. None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class R-III Certificates
under the Securities Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of any Class
R-III Certificate without registration or qualification. Any Class R-III
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-III Certificate agrees to, indemnify the Trustee,
the Certificate Registrar and the Depositor against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No transfer of this Class R-III Certificate or any interest therein
shall be made to (A) a Plan or (B) any Person who is directly or indirectly
purchasing the Class R-III Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan (including,
without limitation, any insurance company using assets in its general or
separate account that may constitute assets of a Plan). As a condition to its
registration of transfer of this Class R-III Certificate, the Certificate
Registrar shall have the right to require the prospective transferee of such
Certificate, if it is not a Plan or Person described in clause (B) of the
preceding sentence, to execute a certification to that effect substantially in
the form of Exhibit H to the Agreement.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of
the Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized Norwest Bank Minnesota, National Association, as paying
agent (the "Paying Agent"), under clause (ii)(A) of such Section 5.02(d) to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Certificate Registrar under clause (ii)(B) of such Section
5.02(d) to negotiate the terms of any mandatory sale and to execute all
instruments of Transfer and to do all other things necessary in connection
with any such sale. Each Person holding or acquiring any Ownership Interest in
this Certificate must be a Permitted Transferee and shall promptly notify the
Master Servicer, the Paying Agent and the Certificate Registrar of any change
or impending change in its status as a Permitted Transferee. In connection
with any proposed Transfer of any Ownership Interest in this Certificate, the
Certificate Registrar shall require delivery to it, and shall not register the
Transfer of this Certificate until its receipt of, an affidavit and agreement
substantially in the form attached as Exhibit I-1 to the Agreement (a
"Transfer Affidavit and Agreement") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing and
warranting, among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest in this
Certificate as a nominee, trustee or agent for any Person that is not a
Permitted Transferee, that for so long as it retains its Ownership Interest in
this Certificate, it will endeavor to remain a Permitted Transferee, and that
it has reviewed the provisions of Section 5.02(d) of the Agreement and agrees
to be bound by them. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if a Responsible Officer of the
Certificate Registrar has actual knowledge that the proposed Transferee is not
a Permitted Transferee, no Transfer of an Ownership Interest in this
Certificate to such proposed Transferee shall be effected.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership
Interest herein and (y) not to transfer its Ownership Interest unless it
provides to the Certificate Registrar a certificate substantially in the form
attached as Exhibit I-2 to the Agreement stating that, among other things, it
has no actual knowledge that such other Person is not a Permitted Transferee.
Each Person holding or acquiring an Ownership Interest in this Certificate, by
purchasing such Ownership Interest herein, agrees to give the Master Servicer
and the Trustee written notice that it is a "pass-through interest holder"
within the meaning of temporary Treasury regulation Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership Interest, if it
is, or is holding such Ownership Interest on behalf of, a "pass-through
interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Certificate Registrar and the Master Servicer the following: (a) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to qualify, downgrade or withdraw its then-current ratings of any Class of
Certificates; and (b) an Opinion of Counsel, in form and substance satisfactory
to the Certificate Registrar and the Master Servicer, obtained at the expense of
the party seeking such modification of, addition to or elimination of such
provisions (but in no event at the expense of the Trust Fund), to the effect
that such modification of, addition to or elimination of such provisions will
not cause the Trust Fund to (x) cease to qualify as a REMIC or (y) be subject to
an entity-level tax caused by the transfer of this Class R-III Certificate to a
Person which is not a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a REMIC-related tax caused by the
transfer of this Class R-III Certificate to a Person which is not a Permitted
Transferee.
A "Permitted Transferee" is any Transferee other than a
"Disqualified Organization" or a "Non-United States Person". A "Disqualified
Organization" is any of (i) the United States, any State or political
subdivision thereof, any possession of the United States, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which
is a corporation if all of its activities are subject to tax and, except for
the FHLMC, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, any international organization,
or any agency or instrumentality of any of the foregoing, (iii) any
organization (other than certain farmers' cooperatives described in Section
521 of the Code) which is exempt from the tax imposed by Chapter I of the Code
(including the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381 of the Code and (v) any other Person so designated by the Trustee
based upon an Opinion of Counsel provided to it that the holding of an
Ownership Interest in a Class R-III Certificate by such Person may cause the
Trust Fund or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the
Transfer of an Ownership Interest in a Class R-III Certificate to such Person.
The terms "United States", "State" and "international organization" shall have
the meanings set forth in Section 7701 of the Code or successor provisions.
A "Non-United States Person" is any Person other than a United
States Person. A "United States Person" is a citizen or resident of the United
States, a corporation, partnership or other entity treated as a corporation or
a partnership for United States federal income tax purposes created or
organized in, or under the laws of, the United States, any state thereof or
the District of Columbia (unless, in the case of a partnership, Treasury
regulations are enacted that provide otherwise), an estate whose income from
sources without the United States is income for United States federal income
tax purposes regardless of its connection of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust, all within the meaning of Section 7701(a)(30) of the
Code.
No service charge will be imposed for any registration of transfer
or exchange of Class R-III Certificates, but the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Class R-III Certificates.
The Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent and the Certificate Registrar and any agent of the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent or the Certificate Registrar may treat the Person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent, the Certificate Registrar or any such agent shall be affected by
notice to the contrary.
The Trust Fund and the obligations created by the Agreement shall
terminate upon distribution (or provision for distribution) to the
Certificateholders of all amounts held by or on behalf of the Trustee and
required to be distributed to them pursuant to the Agreement following the
earlier to occur of (i) the final payment (or any advance with respect
thereto) or other liquidation of the last Mortgage Loan or REO Property
remaining in the Trust Fund, and (ii) the purchase by the Depositor, the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer, the Special
Servicer, the Majority Subordinate Certificateholder or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property
remaining therein. The exercise of such right will effect early retirement of
the Certificates; however, such right to purchase is subject to the aggregate
Stated Principal Balance of the Mortgage Pool at the time of purchase being
less than 1% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of
this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, including any
amendment necessary to maintain the status of the Trust Fund (or designated
portions thereof) as a REMIC, without the consent of the Holders of any of the
Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein)
for distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed.
Dated: May 24, 1999
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Certificate Registrar
By: ______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-III Certificates referred to in the
within-mentioned Agreement.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
as Authenticating Agent
By: ______________________________
Authorized Officer
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
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall be made by check payable to ____________________
_____________________________________________________________________________
and mailed to ________________________________________________________________
Applicable statements and notices should be mailed to
____________________.
This information is provided by ________________________,
the Assignee named above, or ______________________, as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
SECURITIZATION
CONTROL
NUMBER PROPERTY NAME ADDRESS CITY
------------------------------------------------------------------------------------------------------------------------------------
1.00 Sheraton Suites Portfolio Various Various
1.01 Sheraton Suites Wilmington 000 Xxxxxxxx Xxxxxx Xxxxxxxxxx
1.02 Sheraton Suites Dallas 2101 North Stemmons Freeway Dallas
1.03 Sheraton Suites Elk Grove 000 Xxxxxxxxx Xxxxx Xxxx. Elk Grove Village
2.00 Xxxx Portfolio Various Various
2.01 Jamboree Corporate Park 2801 - 0000 XxXxx Xxxxxx Xxxxxx
2.02 Newport Mesa Centre 000 Xxxx 00xx Xxxxxx and Costa Mesa
0000 Xxxxxxxx Xxxxxx
2.03 Xxxx Corporate Center 20 Corporate Park Irvine
2.04 Orange Freeway Business Park 000-000 Xxxxxxxxxxxx Xxxxxx Xxxxxxxxx
2.05 Spectrum Pointe Various Lake Forest
2.06 Von Karman Research Center 0000 Xxxxxxxx Xxxxxxx Xxxxxx
3.00 Xxxxxxxx Xxxxxxxxxx 00 Xxxxxxxx Xxx Newnan
4.00 Wynfrey Hotel at Riverchase Galleria 1000 Riverchase Galleria Xxxxxx
5.00 Wilshire Portfolio 8942,9090,9150 Wilshire Blvd. Xxxxxxx Hills
5.01 Wilshire Doheny Xxxx 0000 Xxxxxxxx Xxxxxxxxx Xxx Xxxxxxx
5.02 ICM Building 0000 Xxxxxxxx Xxxxxxxxx Xxx Xxxxxxx
5.03 Wilshire Palm Xxxx 0000 Xxxxxxxx Xxxxxxxxx Xxx Xxxxxxx
6.00 Hickory Lake 000 Xxxxx Xxxx Xxxx Smyrna
7.00 Westgate Village 2510-2912 Soncy Road Amarillo
8.00 0000 Xxxxxxxxxx Xxxx. 0000 Xxxxxxxxxx Xxxx. Stamford
9.00 Oak Park Commons NEC Oak Tree Road and South Plainfield
Park Avenue
10.00 Vista Ridge Plaza I, II & Shops East Round Grove Road Lewisville
11.00 Alexis Hotel 0000 Xxxxx Xxxxxx Xxxxxxx
12.00 East Thunderbird Square 00000 Xxxxx Xxxxxxxxxx Xxxx Xxxxxxx
13.00 Sherwood Apartments 00000 XxXxx Xxxxxx Bellflower
14.00 Xxxxx Xxxxxx Apartments 000 Xxxxx Xxxxxx Xxxx Xxxxxxxxx
15.00 000 Xxxx Xxxxxx Xxxxxx Apartments 000 Xxxx Xxxxxx Xxxxxx Xxx Xxxx
16.00 Executive House 0000 Xxxx Xxx. Xxxxxxxxxxxx
17.00 Village West Shopping Center 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx
18.00 Marlboro Xxxxxx/Xxxxxxxxx Xxxx Xxxxxx Xxxxx 000 xxx Xxxxxxxx
Xxxxxxx Xxxx
19.00 Windsor Falls Apartments 0000 Xxxxxx Xxxxx Xxxx Raleigh
20.00 Sheraton Hotel - Charleston, SC 000 Xxxxxxxx Xxxxx Xxxxxxxxxx
21.00 High Pointe Shopping Center 21051-21071 Xxxxxxxx Road Novi
22.00 United Healthcare 00000 Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxxxx
23.00 Academy Plaza 3200-3280 Red Lion Road Philadelphia
24.00 Kings Bridge 0000 Xxxxxxxx Xxx Xxxxxxx
25.00 Xxxxxx Village 0000 Xxxx Xxx Xxxxx Xxxxxxxxx
26.00 Garnet Lake Portfolio Various Various
26.01 0000 Xxxxxxxxx Xxxxxxxxx 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx
26.02 0000 X. Xxxxxxx Xxxxxx 0000 X. Xxxxxxx Xxxxxx Los Angeles
26.03 0000 Xx Xxxxxxx Xxxxxx 0000 Xx Xxxxxxx Xxxxxx Los Angeles
26.04 219 S. Mariposa 000 X. Xxxxxxxx Xxxxxx Xxx Xxxxxxx
26.05 0000 X. Xxxxxx Xxxxx Xxxxxx 0000 X. Xxxxxx Xxxxx Xxxxxx X. Xxxxxxxxx
26.06 0000 Xxxxxxxxx Xxxxxxxxx 0000 Xxxxxxxxx Xxxxxxxxx Hollywood
26.07 0000 Xx Xxxxxxx Xxxxx 1750 El Cerrito Place Hollywood
26.08 0000 Xxxxxxxxx Xxxxxxxxx 0000 Xxxxxxxxx Xxxxxxxxx Hollywood
26.09 0000 Xxxxx Xxxxxx 0000 Xxxxx Xxxxxx Xxxxxx Xxxx
26.10 0000 Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx Xxxxxxxx
27.00 Orange Derby Shopping Center 000 Xxx Xxxxx Xxxxxx Derby
28.00 Long Xxxxx Xxxxxx Place and Xxxxxx Drive Matawan
29.00 Somerset Apartments 00000 Xxxx Xxxx Largo
30.00 000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx Xxx Xxxx
31.00 Whitehall Estates 0000 Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxxxxx
32.00 Vista Shopping Center 0000-0000 XX 000xx Xxxxxx Miami
33.00 Xxxxxx Place Apartments 0000 Xxxxxxxxx Xxxxx Xxxxxxx
34.00 Ridgedale Festival Shopping Center 00000 Xxxxxxx Xxxxxxxxx Xxxxxxxxxx
35.00 Lantana /Park Trace Apartments 000/000 Xxxxxxxx Xxxxxx Clearwater
35.01 Lantana 000 Xxxxxxxx Xxxxxx Clearwater
35.02 Park Trace Apartments 000 Xxxxxxxx Xxxxxx Clearwater
36.00 Las Palomas Apartments 0000 Xxxxxxx Xxxxxxx Xxx Xxxxx
37.00 Mercy Wellness Centers Portfolio Various Various
37.01 Eastwick Wellness Center 0000 Xxxxxx Xxx. Xxxxxxxx
37.02 Upper Xxxxx Wellness Center 6800 Market St. Upper Xxxxx
38.00 Wildwood Village Apartments 0000 Xxxxxxxxxxx Xxxxx Xxxxxxxxxxxx
39.00 Xxxxxxx Xxx Xxxxxxxx 0000 Xxxxxxx Xxxx. Kissimmee
40.00 Circuit City Norwalk 444 000 Xxxxxxxxxxx Xxxxxx Xxxxxxx
41.00 Target Center 0000 Xxxxxxxx Xxxxxx Oxnard
42.00 Westgate Shopping Center 0000-0000 Xxxx Xxxxxxx Xxxxx Xxxxxxx
(U.S. Route 54)
43.00 Gardens at Xxxxx Xxxxx 0 Xxxxxxx Xxxxx Xxxxxxxxxx
00.00 Xxxxxx - Xxxxxxxxxxx Center 000-000 Xxxxxxxxxxx Xx. Auburn
45.00 Cornerstone Shopping Center NEC Bloomfield Ave and Cerritos
Artesia Blvd.
46.00 Gabes Place Apartments Portfolio Various Champaign - Urbana
46.01 000 X. Xxxx 000 Xxxx Xxxx Xxxxxx Champaign
46.02 102 X. Xxxxxxx 000 Xxxx Xxxxxxx Xxxxx Champaign
46.03 810 Iowa 000 Xxxx Xxxx Xxxxxx Urbana
46.04 000 X. Xxxxxx 000 X. Xxxxxx Xxxxxx Urbana
46.05 000 X. Xxxxxx 000 X. Xxxxxx Xxxxxx Urbana
47.00 Briarwood Apartments 00 Xxxxx Xxxxxx Xxxxxxxxxxxx
48.00 3 - 0 Xxxx 00xx Xxxxxx 3 - 0 Xxxx 00xx Xx. Xxx Xxxx
49.00 Radio Wave Building 00 Xxxx 00xx Xxxxxx Xxx Xxxx
50.00 Market Square Shopping Center 0000 Xxxxxxx Xxxxxx Lafayette
51.00 Palm Villas Apartments 91 - 0000 Xxxxxx'xxx Xxxxxx Ewa
52.00 Kohl's Department Store 00000 Xxxxxxxxx Xxxxx Manchester
53.00 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx Xxxxxxx
54.00 Xxxxx 0 0000 Xxxxxxx 0000 Xxxx Xxxxx Xxxx Raleigh
55.00 Crown Valley Retail Center 00000 Xxxxxxxxxx Xxxxxxx Mission Viejo
56.00 Xxxxxxxxx Xxx - Xxxxx 00000 Telecom Parkway Tampa
57.00 Comfort Suites - Gastonia 0000 Xxxxxxx Xxxx Gastonia
58.00 Cityplace Market 2405-2415 X. Xxxxxxx Avenue Dallas
59.00 Belmont Crossing 0000 Xxxxxxx Xxxx Smyrna
60.00 Timber Creek Apartments 0000 X. Xxxxxxx Xxxxxxx Euless
61.00 Windgate Place 000 Xxxxxxxxxx Xxxxx Xxxxxxxxx
62.00 Xxxx Xxxxx Chesapeake Cedar Cedar Road and Chesapeake
Las Gavitos Boulevard
63.00 Residence Inn - Sarasota 0000 Xxxxxxxxxx Xxxxxxx Sarasota
64.00 Xxxxxxxx Xxxxxxx Xxxxxxx Xxxx Xxxx Xxxxxxxx
65.00 New Xxxxxxxx Nursing Home 00 Xxxxxxxx Xxxxxx Xxx Xxxxxxxx
66.00 Kjellburg Mobile Home Park 1000 Xxxxxxxxx'x Park Monticello
67.00 Autumn Park Apartments 0000 Xxxx Xxxxx Xxxxxx Xxxxx Xxxxxx
68.00 000 Xxxxxxxxxx Xxxxxx Xxxxxxxx 000 Xxxxxxxxxx Street Boston
69.00 Shopko - Site 814 0000 X. Xxxx Xxxx Xxxxxxx
70.00 Tuscany Village Phase II 000 Xxxxx Xxxx Tallahassee
71.00 Xxxxx Creek Corporate Center II 15 & 35 East Uwchlan Ave. Exton
72.00 Shopko - Site 815 000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx
73.00 Beechwood Villa Apartments 4702 Beechwood Road Cincinnati
74.00 Comfort Inn Alexandria 0000 Xxxx Xxxxxx Xxxxxxxxxx
75.00 Grande Apartments 000-000 Xxxx Xxxxxx Xxxxxx Xxxxxxx Xxxx
76.00 Residence Inn/Knoxville 000 Xxxxxxx Xxxxx Xxxxxxxxx
77.00 Clocktower Square Center 000-000 Xxxx Xxxxxx Xxxxxx
78.00 The Villas at College Hill 000 Xxxxxxxxx Xxxxx Xxxxx
79.00 Xxxxxxxxxx Place 00000 Xxxxxxxxxx Xxxxxx Xxxx
80.00 Xxxxxx & Bird Portfolio Various Various
80.01 Claxton 000 Xxxx Xxxx Xxxxxx Xxxxxxx
80.02 Metter 000 Xxxxx Xxxxxx Xxxxxx
00.00 Xxxxxxxxxx 000 Xxxxx Xxxxxxx Xx. Xxxxxxxxx
81.00 Xxx Xxxxxx Xxxxxx Xxx Xxxxxx Xxxxxx Wellesley
82.00 Warehousing of Wisconsin - Century 0000 Xxxxxxx Xxxx Xxxxx Xxx
83.00 Xxxxx Creek Corporate Center I 55 & 00 Xxxx Xxxxxxx Xxx. Xxxxx
84.00 Shopko - Site 000/ Xxx Xxxxxx Xxxx 000 Xxxxx Xxxxxxxxx Xxxx Joplin
85.00 Tustin & Katella Retail Center 1267-73 East Katella Orange
86.00 Triangle Building 1775 The Exchange Atlanta
87.00 Motel 6 1129 Hilton Head 000 Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx Head
88.00 Intertech Building 1855 & 0000 Xxxxxx Xxxxxx Xxxxxx
89.00 Days Inn - Alexandria 000 X. Xxxxx Xxxxxx Xxxxxxxxxx
00.00 Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxx 000 Xxxx Xxxxxx Xxxxxx Xxx Xxxxx
91.00 Xxxxxxx Building 00-00 X. Xxxxxxx Xxxxxx & Pasadena
00-00 X. Xxxxx Xxxxxx
92.00 Eagle Davenport Locust 000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxx
93.00 Sabre Springs Marketplace 12602-12668 Sabre Springs Parkway San Diego
94.00 Somerpoint (Woodvalley) 0000 Xxxxxxx Xxxx Xxxxxxxx
95.00 Motel 6 1081 Little Rock (W) 00000 X. Xxxxxxx Xxxxxx Xxxxxx Xxxx
96.00 Astor Xxxxxx Xxxxxx Xxxxxxxx 0000 Xxxxx Xxxxxx Xxxxx
97.00 K&K Warehousing 000 Xxxxx Xxxxx Xxxxxx Xxxxx Xxx
98.00 Towne View Plaza Retail Center 0000 Xxxx Xxxxxxx Xx. Flower Mound
99.00 000-000 Xxxxxxx Xxxxx Xxxx 000-000 Xxxxxxx Xxxxx Xxxx Xxxxx Xxxxx
100.00 SDJ Enterprises 0000-0000 X. Xxxxxx Xxxxxx Xxxxxx
101.00 Ramada Plaza West 000 Xxxxxx Xxxx Xxxxxxx Xxxxxxxxx
102.00 Polk Street 2101 - 0000 Xxxx Xxxxxx Xxx Xxxxxxxxx
103.00 Delmont Village Shopping Center 0000 Xxxxx Xxxx Xxxxx Xxxxx
104.00 Golden Horseshoe Shopping Center Xxxxxx Road Scarsdale &
New Xxxxxxxx
105.00 Cottman Plaza 0000 Xxxxxxx Xxxxxx Xxxxxxxxxxxx
106.00 Xxxx Xxxxxx Xxxxxx & Xxxxxx Xxxxx 000 Xxxx 00000 Xxxxx Xxxxxx
107.00 Steeplechase Apartments Portfolio Various Boone
107.01 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx Boone
107.02 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx Boone
107.03 000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx Boone
107.04 000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx Xxxxx
108.00 Statesville Place 0000 Xxxxxxxxx Xxxx Xxxxxxxxxxx
109.00 Motel 6 740 Xxxx Xxxxxx 0000 Xxxxxxxxx Xxxxxx Sparks
110.00 Xxxxxxxx Xxxxxx Xxxx 000 Xxxxxxxx Xxxx Southborough
111.00 Motel 6 608 Mobile 5488 Inn Road Mobile
112.00 Burlington Manor 0000 Xxxxx Xxxxxx Xxxxxx Burlington
113.00 Rite Aid - Commerce Township 2425 East Xxxxxxxx Commerce Township
114.00 Old City Market 000-000 X. Xxxxx Xxxxxx Xxxxxx Savannah
115.00 Paseo Financial Center 2500 West Sahara Las Vegas
116.00 1160-1180 Xxxxxxx Xxxxx 0000-0000 Xxxxxxx Place Carpinteria
117.00 Village East Apartments 0000 Xxxxxxx Xxxx Xxxxx Xxxxxx
118.00 Xxxxxx Furniture - Fort Xxxxxx, FL 0000 Xxxxx Xxxxxxxxx Xxxxxx Ft. Xxxxxx
119.00 Walgreen Colleyville 0000 Xxxxx Xxxx Xxxxxxxxxxx
120.00 Xxx Xxxxxx Xxxxxxxxxx 0000 Xxxx Xxxxxxxxxx Xxxx Xxxxx
121.00 Woodfield Gardens 0000-X Xxxxxxx Xxxxx Xx Xxxxxxxxx
122.00 Rite Aid - Holland 40th & Washington Holland
123.00 Days Inn Fredericksburg South 0000 Xxxxxxxxx Xxxxx Xxxxxxx Xxxxxxxxxxxxxx
124.00 Shrine Apartments 3030-3040 Shrine Place Los Angeles
125.00 Walgreens at Silver Lakes SEC of 184th St. and Pines Blvd. Pembroke Pines
126.00 Best Western Governors Inn 0000 Xxxxxxxxxx Xxxx Richmond
127.00 Staples York Xxxxxx Road 965 Xxxxxx Xx York
128.00 XxxxxxXxx Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxx Xxxxxxx
129.00 Highland Terrace 400 & 000 Xxxxxxxx Xxxxxx Orange
130.00 Fairfield Inn - Mobile 000 X Xxxxx Xxxxxxxx Xxxxxxx Mobile
131.00 Coquina Lakes Apartments 000 X. Xxxx Xxxx Xx. Xxxxxxxxx Xxxxx
132.00 Walgreen Franklin Fieldstone 0000 Xxxxxxxxxx Xxxxxxx Xxxxxxxx
133.00 Riverside Parkway 1980 & 0000 Xxxxxxxxx Xxxxxxx Lawrenceville
134.00 CVS Yarmouth Main 000 Xxxx Xxxxxx Xxxxxxxx
135.00 Walgreen Duncanville Wheatland 0000 Xxxxx Xxxxxxxx Xxxx Xxxx Xxxxxx
136.00 Cosmopolitan Apartments 000 Xxxx Xxxxxx Xxx Xxxxxxxxx
137.00 Rite Aid - Claremont 00-00 Xxxxxxxxxx Xxxxxx Xxxxxxxxx
138.00 Xxxxxxxxx Apartments 000 Xxxxx Xxxxx Xxxxxx Xxxxx Xxxxxx
139.00 Rancho Palms 00000 Xxxxxxxx Xxxx Ranch Mirage
140.00 Tree Top Apartments 0000 Xxxx Xxxxxxx Xxxxx Xxxxxxx
141.00 Tri-Star Building 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx
142.00 Days Inn Shreveport 0000 X. Xxxxxxxxx Xxxxx Shreveport
143.00 Warehousing of Wisconsin - Xxxxxx 0000 Xxxxxx Xxxx Xxxxx Xxx
144.00 Sun Shadow Apartments 0000 X. Xxxxxxxxx Xxxx Xxxxxxx
145.00 Eckerd Oveido Red Bug Lake 8315 Red Bug Lake Road Oviedo
146.00 Cascade Apartments 3441 Burlingame Road Topeka
147.00 Rite Aid - Ironton 000 Xxxx Xxxxxx Xxxxxxx
148.00 Centre Financial Portfolio Various Locust Valley, Long
Beach, Uniondale
148.01 Starbuck's Uniondale 0000 Xxxxxxxxx Tpke. Uniondale
148.02 Starbuck's Xxxx Xxxxx 000 X. Xxxx Xxx. Xxxx Xxxxx
148.03 Birch Hill Square 000 Xxxxx Xxxx Xxxx Xxxxxx Xxxxxx
149.00 Xxxxxx Apartments 0000-0000 Xxxxx 00xx Xxxx Xxxxxxxxx
150.00 Days Inn - Charlotte 0000 Xxxx Xxxxx Xxxxx Xxxx Xxxxxxxxx
151.00 Xxxxxxxxx Xxxxx 0 Xxxx Xxxxxxxxxx Xx. Livingston
152.00 The Coral Tree Apartments 0000 Xxxxxxxxx Xxxx. Los Angeles
153.00 Commack Commons 000-000 Xxxxxxx Xx. Commack
154.00 Xxxxxx Plaza VIII 0000 Xxxx Xxxxxxx 190 Copperas Cove
155.00 Xxxxxx Furniture - Montgomery, AL 2525 Eastern Blvd. Montgomery
156.00 Union Savings Bank 00-00 Xxxxxxxx Xxxx. & Pasadena
00-00 Xxxxx Xxxxxxx Xxx.
157.00 Xxxxxx Square Shopping Center 0 Xxxxxx Xxxxxx Xxxx Xxxxxxxxx
158.00 Pine Brook Apartments 0000 Xxxxxxx Xxxx Xxxx Xxxxxxxxx
159.00 Mayfair House - Woodstock 000 Xx Xxxx Woodstock
160.00 Community Self Storage of Charlottesville 0000 Xxxx Xxxx Xxxx Xxxxxxxxxxxxxxx
161.00 Ocean Terrace 000 Xxxxx Xxxxxx Xxxx Xxxxxx
162.00 1105/1105/1105 Xxxxxx; Various Xxxxxxx
0000 Xxxxxxx; 1106 Xxxxxxx
162.01 1104/1105/1108 Xxxxxx 1104/1105/1108 Xxxxxx Xxxxxxx
162.02 1114 Xxxxxxx 1114 Xxxxxxx Xxxxxxx
162.03 1106 Xxxxxxx 1106 Xxxxxxx Xxxxxxx
163.00 Harvard Apartments 0000 Xxxxxxx Xxxxx Xxxxxxxxxx
164.00 Interama Warehouses 0000-0000 XX 000xx Xx. & Xxxxx Xxxxx
0000-0000 NE 151st St.
165.00 Lakeview Warehouse 0000-0000 Xxxxx Xxxx Xxxxxxx
166.00 Goldome Portfolio Various Omaha
166.01 Arlington Apartments 0000-0000 Xxxxxxxxx Xxxxxx Omaha
166.02 Genoa & Sagamore Apartments 3828 & 0000 Xxxx Xxxxxx Xxxxx
166.03 Glendale Apartments 000 X. 00xx Xxxxxx Xxxxx
166.04 Norton Apartments 5019-5021 Xxxxxxxxx Omaha
166.05 Xxxxxxxx Apartments 5017 Xxxxxxxxx Omaha
167.00 Xxxxxxx House 1264 Branchlands Dr. Charlottesville
168.00 Eckerd Xxxxxx Tallahassee NEC North Monroe & Xxxxxxx St. Tallahassee
169.00 CVS Lansdowne Hollins Ferry 0000 Xxxxxxx Xxxxx Xxxx Xxxxxxxxx
170.00 Garden Gate 000-000 Xxxx Xxx Xxxxx Xxxxxx Xxxx
171.00 Super 8 Motel 0 Xxxxxxxx Xxxx Xxxxxxxxx
172.00 Island Lake Mobile Park 2401 Oxford Millville Rd. Xxxxxxxx
173.00 Xxxxxx Arms Apartments 0000 Xxxxx 0X Xxx Xxxxxxx
174.00 Xxxxxx-Xxxxxx - Wilson, NC 1951 Westwood Avenue Wilson
175.00 Eckerd, Tarboro 0000 Xxxx Xxxxxx Xxxxxxx
176.00 0000-0000 Xxxxxxx Xxxxxx 0000-0000 Xxxxxxx Xxxxxx Xxx Xxxx
177.00 Amberwood Apartments 0000 Xxxxxxxxx Xxxxx Xxxxxxx
178.00 The Palms of Sarasota 0000-0000 Xxx Xxxxxxxxx Xxxx Sarasota
179.00 Xxxxxx-Xxxxxx - Santa Rosa, CA 2908 Santa Xxxx Avenue Santa Xxxx
180.00 CVS Rocky Mount Franklin St & Dent Street Rocky Mount
181.00 Madison Ridge Apartments 355 Lake Drive Marietta
182.00 Days Inn Mt.Sterling 000 Xxxxxxxxx Xxxx Xxxxx Xxxxxxxx
183.00 Xxxxxx-Xxxxxx - Riverside, CA 0000 Xxxxxxxx Xxxxxx Riverside
184.00 Gates Place Apartments 0000 Xxxxx Xxxxx Xxxxx
185.00 Xxxxxx-Xxxxxx - Richmond, VA 0000 Xxxx Xxxxxxx Xxxxx Xxxxxxxx
186.00 000-000 Xxxxxxx Xxxxxx 000-000 Xxxxxxx Xxxxxx Xxxxxxx
187.00 Xxxxxx-Xxxxxx - Garner, NC 1540 Mechanical Blvd. Garner
188.00 Xxxxxxxx Park Apartments 1861-1867 Middlesex Street Lowell
189.00 Information Management Systems Building 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx
190.00 IHOP Rock Hill North Cherry North Cherry Road Rock Hill
191.00 Xxxxxx-Xxxxxx - 0000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx-Xxxxxxxxxx, XX
192.00 Xxxxx Warehouse 0000-0000 XX 00xx Xxxxxx Margate
193.00 CVS Xxxxxxxxxx Xxx Xxxxxxxx 0000 Xxx Xxxxxxxx Xxxx Greenville
194.00 Xxxxxx-Xxxxxx - Xxxxxxx, IL 1360 Xxxxxxx Blvd Forsyth
195.00 Xxxxxx-Xxxxxx - Owensboro, KY 0000 Xxxx Xxxxxxx Xxxxxx Owensboro
196.00 Xxxxxx-Xxxxxx - Xxxx, XX 0000 Xxxxxxx Xxxxx Xxxx
197.00 Xxxxxx-Xxxxxx - Dothan, AL 0000 Xxxx Xxxxx Xxxxxx Dothan
198.00 Xxxxxx-Xxxxxx - Evansville, IN 000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxxx
199.00 Xxxxxx-Xxxxxx - Hopkinsville, KY 4537 Fort Xxxxxxxx Blvd Hopkinsville
200.00 Xxxxxx-Xxxxxx - Tallahassee, FL 3213 Appalachee Parkway Tallahassee
201.00 Xxxxxx-Xxxxxx - Visalia, CA 2700 South Xxxxxx Boulevard Visalia
202.00 Xxxxxx-Xxxxxx - Pikeville, KY 000 Xxx Xxxxxxx Xxxxxxxxx Xxxxxxxxx
203.00 Xxxxxx-Xxxxxx - Albany, GA 2311 Lake Park Drive Albany
204.00 Xxxxxx-Xxxxxx - Xxxxx, OH 1175 Hebron Road Heath
205.00 Xxxxxx-Xxxxxx - Marion, IL 0000 Xxxx Xxxxx Xxxxx Xxxxxx
206.00 Xxxxxx-Xxxxxx - Temple, TX 0000 Xxxxx 00xx Xxxxxx Temple
207.00 Xxxxxx-Xxxxxx - Zanesville, OH 2650 Mayesville Pike Zanesville
208.00 Xxxxxx-Xxxxxx - Fresno-Kings Canyon, CA 0000 Xxxx Xxxxx Xxxxxx Xxxx Xxxxxx
209.00 Xxxxxx-Xxxxxx - Jackson, MS 1600 Xxxxx Road Jackson
210.00 Xxxxxx-Xxxxxx - Modesto, CA 0000 XxXxxxxx Xxxxxx Modesto
211.00 Xxxxxx-Xxxxxx - Champaign, IL 0000 X. Xxxxxx Xxxxxx Xxxxxxxxx
000.00 Xxxxxx-Xxxxxx - Xxxxxxx, XX 000 Xxxx Xxxx Xxxxxx Xxxxxxx
213.00 Xxxxxx-Xxxxxx - Moberly, MO 1720 Crete Street Xxxxxxx
214.00 Xxxxxxxxx Square 0000 Xxxxxx Xxxx Xxxx Knoxville
215.00 000 Xxxxxx Xxxxxx 300 Xxxxxx Street Pawtucket
216.00 Southland Ormond Beach Nova 000 Xxxxx Xxxx Xxxx Xxxxxx Xxxxx
217.00 000-000 Xxxxxxx Xxxxxx 000-000 Xxxxxxx Xxxxxx Xxxxxxx
218.00 Motel 6 202 Lumberton 0000 Xxxxxx Xxxx Xxxxxxxxx
219.00 Bulova Technologies Building 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx
220.00 000-000 Xxxxxx Xxxxxx 000-000 Xxxxxx Xxxxxx Xxxxxxx
221.00 Xxxxxxx Xxxx Apartments 0000 Xxxxxxx Xxxx Corpus Christi
222.00 0000 Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx Xxxxxxx
223.00 Spring Market Shopping Center 0000 Xxxxxxxx Xx. Xxxxxxxxxxxx
(Table Continued)
ORIGINAL REMAINING
TERM TO TERM TO
MATURITY OR MATURITY OR
SECURITIZATION MONTHLY ANTICIPATED ANTICIPATED
CONTROL CUT-OFF DATE DEBT MORTGAGE REPAYMENT REPAYMENT
NUMBER STATE ZIP CODE BALANCE ($) SERVICE (1) RATE (%) DATE (MOS.) DATE (MOS.)
------------------------------------------------------------------------------------------------------------------------------------
1.00 Multiple Various 50,443,313 354,464.98 6.7500% 120.00 114.00
0.00 XX 00000
0.00 XX 00000
1.03 IL 60007-1019
2.00 CA Various 37,472,777 265,035.81 7.6100% 120.00 119.00
2.01 CA 92714.00
2.02 CA 92627.00
2.03 CA 92606.00
2.04 CA 92870.00
2.05 CA 92630.00
2.06 CA 92606.00
3.00 GA 30265.00 29,750,000 198,927.50 7.0500% 120.00 116.00
4.00 AL 35244 25,263,571 187,519.72 7.4000% 120.00 109.00
5.00 XX 00000 24,502,544 184,196.89 8.2500% 132.00 113.00
5.01 XX 00000
5.02 XX 00000
5.03 CA 90211
6.00 GA 30082 22,492,277 159,782.62 7.6500% 120.00 118.00
7.00 XX 00000 21,984,235 140,705.97 6.5700% 120.00 114.00
8.00 CT 06901 19,932,471 142,868.04 7.7200% 120.00 115.00
9.00 XX 00000 19,154,363 122,481.05 6.5700% 120.00 115.00
10.00 XX 00000 18,917,890 120,968.93 6.5700% 120.00 115.00
11.00 XX 00000 18,779,010 138,194.52 7.2130% 117.00 110.00
12.00 AZ 85254.00 16,978,212 118,886.47 7.5000% 120.00 118.00
13.00 CA 90706.00 15,788,274 110,475.89 7.5000% 120.00 119.00
14.00 NV 89014.00 15,668,057 108,244.44 7.3700% 120.00 119.00
15.00 NY 10009.00 15,231,468 108,726.43 7.7000% 120.00 118.00
16.00 PA 19131.00 14,582,212 103,991.49 7.6900% 120.00 118.00
17.00 PA 18104.00 14,398,114 95,982.45 6.9500% 120.00 111.00
18.00 XX 00000 14,018,261 88,995.19 6.5000% 84.00 79.00
19.00 XX 00000 13,500,000 95,106.45 7.3750% 120.00 119.00
20.00 SC 29403.00 12,939,276 104,679.52 8.5000% 120.00 115.00
21.00 MI 48333.00 12,525,000 88,435.86 7.6000% 120.00 120.00
22.00 MO 63043.00 12,000,000 83,744.81 6.8600% 132.00 124.00
23.00 PA 19116 10,966,031 75,835.52 7.2750% 180.00 166.00
24.00 GA 30076 10,716,791 76,130.88 7.6500% 120.00 118.00
25.00 GA 30021 10,700,000 75,182.64 7.5500% 120.00 120.00
26.00 CA Various 10,659,280 75,500.36 7.6250% 120.00 119.00
26.01 CA 90046.00
26.02 CA 90046.00
26.03 CA 90046.00
26.04 CA 90046.00
26.05 CA 90046.00
26.06 CA 90046.00
26.07 CA 90028.00
26.08 CA 90046.00
26.09 CA 90232.00
26.10 CA 91205.00
27.00 CT 06418 10,570,531 76,857.36 7.8750% 60.00 56.00
28.00 NJ 7747.00 10,476,840 71,625.45 7.2400% 120.00 116.00
29.00 XX 00000 10,227,394 72,654.26 7.6500% 120.00 118.00
30.00 XX 00000 10,225,000 72,900.18 7.7000% 120.00 120.00
31.00 NC 28273.00 9,824,768 76,333.95 6.8000% 240.00 231.00
32.00 XX 00000 9,627,049 64,860.40 7.0500% 120.00 110.00
33.00 XX 00000 9,300,000 65,517.77 7.3750% 120.00 119.00
34.00 XX 00000 9,110,457 58,256.09 6.5700% 120.00 115.00
35.00 XX 00000 9,058,835 64,352.95 7.6500% 120.00 118.00
35.01 XX 00000
35.02 FL 33759
36.00 NV 89121.00 8,989,205 64,477.10 7.7500% 120.00 118.00
37.00 PA Various 8,962,055 61,903.24 7.0000% 120.00 110.00
37.01 PA 19153.00
37.02 PA 19082.00
38.00 IN 46222.00 8,937,414 61,670.91 7.3400% 120.00 117.00
39.00 XX 00000 8,115,184 57,779.20 7.0000% 120.00 114.00
40.00 CT 6854.00 7,898,702 Steps 7.7500% 240.00 236.00
41.00 XX 00000 7,816,076 49,979.27 6.5700% 120.00 115.00
42.00 XX 00000 7,816,076 49,979.27 6.5700% 120.00 115.00
43.00 MD 21208 7,690,000 54,175.45 7.3750% 120.00 119.00
44.00 MA 1501.00 7,244,831 51,689.61 7.7000% 120.00 119.00
45.00 CA 90703.00 6,937,130 49,877.33 7.7800% 120.00 119.00
46.00 IL 61820.00 6,675,415 49,381.74 7.4700% 120.00 117.00
46.01 IL 61820.00
46.02 IL 61820.00
46.03 IL 61820.00
46.04 IL 61820.00
46.05 IL 61820.00
47.00 NC 28306 6,650,000 46,725.66 7.5500% 120.00 120.00
48.00 XX 00000 6,625,663 44,970.71 7.1250% 120.00 110.00
49.00 NY 10001.00 6,445,411 46,030.43 7.7100% 120.00 119.00
50.00 IN 47901.00 6,353,653 46,959.02 7.3750% 120.00 110.00
51.00 HI 96706.00 6,290,673 41,533.96 6.9100% 120.00 118.00
52.00 XX 00000 6,272,774 40,110.75 6.5700% 120.00 115.00
53.00 CT 6851.00 6,255,724 42,370.16 7.1250% 120.00 113.00
54.00 NC 27606.00 6,235,064 Steps 7.2350% 216.00 205.00
55.00 CA 92692.00 6,231,732 44,237.11 7.6250% 120.00 116.00
56.00 FL 33617.00 6,010,240 43,275.23 7.1000% 120.00 112.00
57.00 NC 28054.00 5,725,887 43,334.18 7.6250% 121.00 109.00
58.00 XX 00000 5,725,151 36,609.02 6.5700% 120.00 115.00
59.00 XX 00000 5,712,959 40,584.22 7.6500% 120.00 118.00
60.00 TX 76040.00 5,500,000 37,333.35 7.2000% 120.00 120.00
61.00 XX 00000 5,490,000 38,575.02 7.5500% 120.00 120.00
62.00 VA 23322.00 5,445,132 38,900.77 6.7500% 240.00 233.00
63.00 FL 34234.00 5,389,208 38,803.65 7.1000% 120.00 112.00
64.00 NY 10941.00 5,383,818 37,757.58 7.5000% 120.00 116.00
65.00 NY 10801.00 5,383,759 56,396.22 9.3750% 180.00 176.00
66.00 MN 55362.00 5,206,861 37,525.60 7.1250% 120.00 113.00
67.00 NE 68803.00 5,196,149 36,394.77 7.5100% 120.00 119.00
68.00 MA 2109.00 5,194,470 39,893.61 7.9300% 120.00 119.00
69.00 XX 00000 5,152,636 32,948.12 6.5700% 120.00 115.00
70.00 FL 32304.00 5,120,000 33,634.76 6.8750% 120.00 113.00
71.00 PA 19341 5,080,691 36,863.15 7.2500% 120.00 117.00
72.00 XX 00000 5,077,960 32,470.61 6.5700% 120.00 115.00
73.00 XX 00000 5,024,014 36,981.74 8.0000% 120.00 115.00
74.00 VA 22312.00 5,019,952 39,307.87 7.3750% 264.00 250.00
75.00 NJ 7204.00 4,971,334 30,380.53 6.1250% 120.00 114.00
76.00 TN 37922.00 4,940,520 35,572.98 7.1000% 120.00 112.00
77.00 CT 6468.00 4,931,973 34,188.42 7.3750% 120.00 115.00
78.00 GA 31201.00 4,756,173 32,409.94 6.5000% 120.00 113.00
79.00 XX 00000 4,434,534 31,502.43 7.6500% 120.00 118.00
80.00 GA Various 4,421,610 36,596.42 7.6250% 120.00 110.00
80.01 GA 30417.00
80.02 GA 30439.00
80.03 GA 30458.00
81.00 MA 2482.00 4,400,000 31,674.30 7.8000% 120.00 120.00
82.00 WI 54303.00 4,369,922 31,721.79 7.8750% 120.00 118.00
83.00 PA 19341 4,333,530 31,442.10 7.2500% 120.00 117.00
84.00 XX 00000 4,331,201 27,695.52 6.5700% 120.00 115.00
85.00 CA 92867.00 4,300,000 30,066.22 7.5000% 120.00 115.00
86.00 XX 00000 4,261,133 31,070.93 7.9000% 120.00 115.00
87.00 SC 29928.00 4,232,286 Steps 7.2350% 216.00 205.00
88.00 MO 63026.00 4,155,430 31,367.07 7.7300% 120.00 119.00
89.00 VA 22312.00 4,112,307 32,200.71 7.3750% 264.00 250.00
90.00 NV 89104.00 4,107,613 32,444.72 8.2500% 120.00 118.00
91.00 XX 00000 4,088,704 29,856.01 7.9200% 120.00 116.00
92.00 IA 52803.00 4,085,191 32,298.00 8.1100% 264.00 255.00
93.00 CA 92128.00 4,081,362 27,969.23 7.2500% 120.00 114.00
94.00 XX 00000 4,074,977 28,948.18 7.6500% 120.00 118.00
95.00 AR 72205.00 4,043,344 Steps 7.2350% 216.00 205.00
96.00 NY 10469.00 3,947,212 28,298.28 7.7500% 120.00 119.00
97.00 WI 54305.00 3,818,368 31,590.34 7.8300% 120.00 119.00
98.00 TX 75028.00 3,747,359 26,891.38 7.7600% 120.00 119.00
99.00 CT 06473 3,660,510 26,735.64 7.9100% 120.00 114.00
100.00 XX 00000 3,650,000 26,833.31 8.0200% 120.00 120.00
101.00 NC 28806.00 3,599,706 30,306.04 7.8100% 120.00 108.00
102.00 CA 94109.00 3,597,628 26,641.74 8.0900% 120.00 119.00
103.00 LA 70805 3,500,000 26,171.40 8.2000% 120.00 120.00
104.00 NY 10583.00 3,480,963 23,285.59 7.0000% 120.00 113.00
105.00 PA 19149 3,432,586 22,376.63 6.7500% 120.00 114.00
106.00 UT 84020 3,295,000 23,833.88 7.8500% 120.00 120.00
107.00 NC 28607.00 3,276,831 23,852.63 7.2500% 300.00 294.00
107.01 NC 28607.00
107.02 NC 28607.00
107.03 NC 28607.00
107.04 NC 28607.00
108.00 NC 28677.00 3,196,352 21,727.42 7.1250% 120.00 108.00
109.00 NV 89431.00 3,164,767 Steps 7.2350% 216.00 205.00
110.00 XX 00000 3,108,177 29,174.91 7.1250% 180.00 171.00
111.00 AL 36619.00 3,079,744 Steps 7.2350% 216.00 205.00
112.00 NC 27215.00 3,078,459 20,624.38 7.0000% 120.00 111.00
113.00 MI 48382.00 3,046,015 21,305.89 6.9420% 264.00 253.00
114.00 GA 31401.00 2,997,211 24,664.31 8.7500% 120.00 119.00
115.00 XX 00000 2,993,240 22,012.94 8.0000% 120.00 117.00
116.00 XX 00000 2,933,089 21,062.52 7.7500% 120.00 117.00
117.00 TX 76201.00 2,928,635 21,572.68 8.0000% 120.00 114.00
118.00 FL 33907.00 2,811,140 22,173.55 7.0000% 180.00 171.00
119.00 TX 76034.00 2,805,603 21,510.00 6.7000% 240.00 234.00
120.00 TX 76116.00 2,797,909 19,520.52 7.4700% 120.00 119.00
121.00 XX 00000 2,780,000 19,533.43 7.5500% 120.00 120.00
122.00 MI 49423.00 2,764,695 19,338.15 6.9420% 264.00 253.00
123.00 VA 22312.00 2,704,332 21,175.80 7.3750% 264.00 250.00
124.00 CA 90007.00 2,700,000 19,910.62 7.7500% 120.00 120.00
125.00 FL 33029.00 2,672,432 20,653.65 6.7500% 239.00 232.00
126.00 VA 23235.00 2,668,497 20,730.97 6.8750% 120.00 114.00
127.00 PA 17404.00 2,647,603 21,247.14 7.0200% 179.00 175.00
128.00 OR 97504.00 2,640,656 20,016.21 7.7500% 120.00 117.00
129.00 NJ 7050.00 2,612,209 18,777.17 7.7500% 120.00 115.00
130.00 AL 36609.00 2,600,013 18,720.75 7.1000% 120.00 112.00
131.00 FL 32084.00 2,593,401 17,824.84 7.3000% 120.00 117.00
132.00 TN 37064.00 2,563,871 20,264.35 7.1250% 241.00 235.00
133.00 GA 30246.00 2,558,282 18,784.37 8.0000% 120.00 119.00
134.00 MA 2664.00 2,556,250 Steps 7.3750% 246.00 236.00
135.00 TX 75236.00 2,550,305 19,668.67 6.7500% 239.00 233.00
136.00 CA 94102.00 2,540,683 18,844.28 7.5000% 120.00 117.00
137.00 XX 0000.00 2,527,844 17,472.18 6.9420% 264.00 253.00
138.00 NE 69101.00 2,521,131 17,658.46 7.5100% 120.00 119.00
139.00 CA 92270.00 2,518,221 18,053.59 7.7500% 120.00 119.00
140.00 TX 75051.00 2,516,673 17,405.01 7.3750% 120.00 118.00
141.00 AZ 85034.00 2,496,914 17,720.65 7.6400% 120.00 118.00
142.00 LA 71109.00 2,458,572 19,251.42 7.3750% 264.00 250.00
143.00 WI 54303.00 2,447,156 17,764.20 7.8750% 120.00 118.00
144.00 AZ 85015.00 2,446,854 16,942.26 7.3750% 120.00 117.00
145.00 FL 32765.00 2,418,557 Steps 6.6875% 238.00 231.00
146.00 KS 66611.00 2,395,798 19,123.70 8.3750% 120.00 118.00
147.00 OH 45638.00 2,385,499 16,488.31 6.9420% 264.00 253.00
148.00 NY Various 2,307,411 16,741.85 7.8750% 120.00 119.00
148.01 XX 00000
148.02 XX 00000
148.03 NY 11560
149.00 VA 22209.00 2,267,370 16,298.38 7.7500% 120.00 115.00
150.00 NC 28213.00 2,261,769 17,710.39 7.3750% 264.00 250.00
151.00 NJ 7039.00 2,233,645 15,959.99 7.0400% 120.00 114.00
152.00 CA 90066.00 2,193,242 15,194.85 7.3750% 120.00 116.00
153.00 NY 11725.00 2,167,652 16,859.11 8.0500% 120.00 117.00
154.00 TX 76522.00 2,148,546 15,716.03 7.9600% 120.00 119.00
155.00 AL 36117.00 2,113,270 16,668.93 7.0000% 180.00 171.00
156.00 XX 00000 2,097,761 15,688.11 8.1900% 120.00 118.00
157.00 NY 11731.00 2,091,487 13,795.51 6.8750% 120.00 115.00
158.00 TN 37076.00 2,077,180 14,217.49 7.2700% 120.00 118.00
159.00 VA 22664.00 1,994,698 15,350.22 8.2500% 120.00 117.00
160.00 VA 22901.00 1,993,054 15,959.34 7.3750% 120.00 118.00
161.00 NJ 7740.00 1,980,845 13,943.23 7.4700% 360.00 346.00
162.00 VA 24141.00 1,958,878 12,932.04 6.8750% 120.00 114.00
162.01 VA 24141.00
162.02 VA 24141.00
162.03 VA 24141.00
163.00 VA 23324.00 1,916,639 15,298.96 8.3750% 120.00 118.00
164.00 FL 33161.00 1,908,797 14,449.44 7.7500% 120.00 118.00
165.00 FL 33063.00 1,882,330 13,504.37 7.7500% 120.00 118.00
166.00 NE 68132.00 1,861,357 14,198.15 8.3750% 120.00 114.00
166.01 NE 68132.00
166.02 NE 68132.00
166.03 NE 68132.00
166.04 NE 68132.00
166.05 NE 68132.00
167.00 VA 22901.00 1,848,059 13,898.43 8.2500% 120.00 118.00
168.00 FL 32301.00 1,839,504 Steps 7.2500% 235.00 228.00
169.00 MD 21227.00 1,831,525 14,056.17 6.7400% 239.00 235.00
170.00 FL 32790 1,790,687 11,531.55 6.6300% 120.00 114.00
171.00 NC 28806.00 1,767,561 15,224.39 8.1500% 120.00 109.00
172.00 OH 45013.00 1,735,351 14,133.42 8.6250% 120.00 119.00
173.00 NY 12553.00 1,701,444 11,810.55 7.3750% 84.00 77.00
174.00 NC 27893.00 1,693,551 12,529.37 7.4100% 156.00 148.00
175.00 NC 27886.00 1,690,369 Steps 7.1250% 236.00 230.00
176.00 NY 10466.00 1,678,574 13,154.93 8.1200% 120.00 115.00
177.00 NE 68701.00 1,598,815 11,198.39 7.5100% 120.00 119.00
178.00 FL 34230.00 1,598,339 12,433.97 8.0800% 120.00 119.00
179.00 CA 95407.00 1,558,067 11,527.02 7.4100% 156.00 148.00
180.00 VA 24151.00 1,520,209 Steps 7.0000% 235.00 228.00
181.00 GA 30064.00 1,518,970 11,100.29 7.9500% 120.00 119.00
182.00 KY 40353.00 1,507,846 11,806.93 7.3750% 264.00 250.00
183.00 CA 92503.00 1,507,260 11,151.14 7.4100% 156.00 148.00
184.00 NY 10467.00 1,494,969 10,746.18 7.7500% 120.00 115.00
185.00 VA 23227.00 1,490,325 11,025.84 7.4100% 156.00 148.00
186.00 VA 24141.00 1,424,638 9,405.12 6.8750% 120.00 114.00
187.00 NC 27529.00 1,422,583 10,524.67 7.4100% 156.00 148.00
188.00 MA 1851.00 1,398,923 9,617.03 7.3200% 120.00 119.00
189.00 AZ 85034.00 1,398,272 9,923.56 7.6400% 120.00 118.00
190.00 SC 29730.00 1,389,770 Steps 7.7500% 297.00 288.00
191.00 CA 93710.00 1,337,905 9,898.20 7.4100% 156.00 148.00
192.00 FL 33063.00 1,322,090 10,008.11 7.7500% 120.00 118.00
193.00 SC 27258.00 1,306,853 Steps 7.1250% 175.00 164.00
194.00 IL 62535.00 1,287,099 9,522.32 7.4100% 156.00 148.00
195.00 KY 42301.00 1,287,099 9,522.32 7.4100% 156.00 148.00
196.00 IL 61354.00 1,287,099 9,522.32 7.4100% 156.00 148.00
197.00 AL 36301.00 1,270,163 9,397.03 7.4100% 156.00 148.00
198.00 IN 47715.00 1,270,163 9,397.03 7.4100% 156.00 148.00
199.00 KY 42240.00 1,253,228 9,271.73 7.4100% 156.00 148.00
200.00 FL 32311.00 1,253,228 9,271.73 7.4100% 156.00 148.00
201.00 CA 93277.00 1,253,228 9,271.73 7.4100% 156.00 148.00
202.00 KY 41501.00 1,236,292 9,146.44 7.4100% 156.00 148.00
203.00 GA 31707.00 1,219,357 9,021.14 7.4100% 156.00 148.00
204.00 OH 43056.00 1,219,357 9,021.14 7.4100% 156.00 148.00
205.00 IL 62959.00 1,219,357 9,021.14 7.4100% 156.00 148.00
206.00 TX 76504.00 1,202,421 8,895.85 7.4100% 156.00 148.00
207.00 OH 43701.00 1,185,486 8,770.56 7.4100% 156.00 148.00
208.00 CA 93727.00 1,168,550 8,645.26 7.4100% 156.00 148.00
209.00 MS 39204.00 1,168,550 8,645.26 7.4100% 156.00 148.00
210.00 CA 95350.00 1,151,615 8,519.97 7.4100% 156.00 148.00
211.00 IL 61821.00 1,117,744 8,269.38 7.4100% 156.00 148.00
212.00 NC 27331.00 1,100,808 8,144.09 7.4100% 156.00 148.00
213.00 MO 65270.00 1,100,808 8,144.09 7.4100% 156.00 148.00
214.00 TN 37920.00 1,080,177 8,628.28 8.9000% 360.00 357.00
215.00 RI 2860.00 1,071,814 9,329.10 8.5000% 120.00 118.00
216.00 FL 32174.00 1,068,620 Steps 9.1250% 171.00 163.00
217.00 VA 24141.00 1,068,479 7,053.84 6.8750% 120.00 114.00
218.00 NC 28358.00 1,039,177 Steps 7.2350% 216.00 205.00
219.00 AZ 85034.00 898,889 6,379.43 7.6400% 120.00 118.00
220.00 VA 24141.00 770,193 5,084.63 6.8750% 120.00 114.00
221.00 TX 78415.00 749,041 5,244.11 7.5000% 120.00 118.00
222.00 VA 24141.00 513,462 3,389.75 6.8750% 120.00 114.00
223.00 GA 30133.00 412,861 3,617.10 9.5000% 120.00 117.00
(Table Continued)
AGGREGATE
SECURITIZATION ORIGINAL REMAINING MASTER LOAN
CONTROL MATURITY OR AMORTIZATION AMORTIZATION LEASEHOLD SERVICING ADMINISTRATIVE
NUMBER ARD DATE TERM (MOS.) TERM (MOS.) INTERESTS FEE RATE FEE RATE
------------------------------------------------------------------------------------------------------------------------------
1.00 11/10/08 300.00 294.00 0.0500% 0.05225%
1.01
1.02 Leasehold
1.03
2.00 04/01/09 360.00 359.00 0.0600% 0.06225%
2.01
2.02
2.03
2.04
2.05
2.06
3.00 01/01/09 360.00 360.00 0.0600% 0.06225%
4.00 06/10/08 300.00 289.00 0.0850% 0.08725%
5.00 10/01/08 360.00 341.00 0.0850% 0.08725%
5.01
5.02 Leasehold
5.03 Leasehold
6.00 03/10/09 360.00 358.00 0.0850% 0.08725%
7.00 11/10/08 360.00 354.00 0.0850% 0.08725%
8.00 12/10/08 360.00 355.00 Leasehold 0.0850% 0.08725%
9.00 12/10/08 360.00 355.00 0.0850% 0.08725%
10.00 12/10/08 360.00 355.00 0.0850% 0.08725%
11.00 07/10/08 300.00 293.00 0.0850% 0.08725%
12.00 03/01/09 360.00 358.00 0.0600% 0.06225%
13.00 04/01/09 360.00 359.00 0.0600% 0.06225%
14.00 04/01/09 360.00 359.00 0.0600% 0.06225%
15.00 03/01/09 360.00 358.00 0.0600% 0.06225%
16.00 03/01/09 360.00 358.00 0.0600% 0.06225%
17.00 08/10/08 360.00 351.00 0.0850% 0.08725%
18.00 12/10/05 360.00 355.00 0.0850% 0.08725%
19.00 04/10/09 336.00 336.00 0.0850% 0.08725%
20.00 12/01/08 300.00 295.00 0.0600% 0.06225%
21.00 05/10/09 360.00 360.00 0.0850% 0.08725%
22.00 09/01/09 300.00 300.00 0.0600% 0.06225%
23.00 03/10/13 360.00 346.00 0.0850% 0.08725%
24.00 03/10/09 360.00 358.00 0.0850% 0.08725%
25.00 06/10/09 360.00 360.00 0.0850% 0.08725%
26.00 04/01/09 360.00 359.00 0.0600% 0.06225%
26.01
26.02
26.03
26.04
26.05
26.06
26.07
26.08
26.09
26.10
27.00 01/10/04 360.00 356.00 0.0850% 0.08725%
28.00 01/01/09 360.00 356.00 0.0600% 0.06225%
29.00 03/10/09 360.00 358.00 0.0850% 0.08725%
30.00 05/10/09 360.00 360.00 0.0850% 0.08725%
31.00 08/01/18 240.00 231.00 0.0600% 0.06225%
32.00 07/10/08 360.00 350.00 0.0850% 0.08725%
33.00 04/10/09 336.00 336.00 0.0850% 0.08725%
34.00 12/10/08 360.00 355.00 0.0850% 0.08725%
35.00 03/10/09 360.00 358.00 0.0850% 0.08725%
35.01
35.02
36.00 03/01/09 360.00 358.00 0.0600% 0.06225%
37.00 07/01/08 324.00 320.00 0.0600% 0.06225%
37.01
37.02
38.00 02/01/09 360.00 357.00 0.0600% 0.06225%
39.00 11/10/08 300.00 294.00 0.0850% 0.08725%
40.00 01/01/19 240.00 236.00 0.0600% 0.06225%
41.00 12/10/08 360.00 355.00 0.0850% 0.08725%
42.00 12/10/08 360.00 355.00 0.0850% 0.08725%
43.00 04/10/09 336.00 336.00 0.0850% 0.08725%
44.00 04/01/09 360.00 359.00 0.0600% 0.06225%
45.00 04/01/09 360.00 359.00 0.0600% 0.06225%
46.00 02/01/09 300.00 297.00 0.0600% 0.06225%
46.01
46.02
46.03
46.04
46.05
47.00 06/10/09 360.00 360.00 0.0850% 0.08725%
48.00 07/10/08 360.00 350.00 0.0850% 0.08725%
49.00 04/01/09 360.00 359.00 0.0600% 0.06225%
50.00 07/01/08 300.00 290.00 0.0600% 0.06225%
51.00 03/01/09 360.00 358.00 0.0600% 0.06225%
52.00 12/10/08 360.00 355.00 0.0850% 0.08725%
53.00 10/01/08 360.00 353.00 0.0600% 0.06225%
54.00 06/01/16 270.00 259.00 0.0600% 0.19725%
55.00 01/01/09 360.00 356.00 0.0600% 0.06225%
56.00 09/01/08 300.00 292.00 Leasehold 0.0600% 0.06225%
57.00 06/01/08 300.00 288.00 0.0600% 0.06225%
58.00 12/10/08 360.00 355.00 0.0850% 0.08725%
59.00 03/10/09 360.00 358.00 0.0850% 0.08725%
60.00 05/01/09 360.00 360.00 0.0600% 0.06225%
61.00 06/10/09 360.00 360.00 0.0850% 0.08725%
62.00 10/01/18 283.00 276.00 0.0600% 0.06225%
63.00 09/01/08 300.00 292.00 Leasehold 0.0600% 0.06225%
64.00 01/01/09 360.00 356.00 0.0600% 0.06225%
65.00 01/01/14 180.00 176.00 0.0600% 0.06225%
66.00 10/01/08 300.00 293.00 0.0600% 0.06225%
67.00 04/01/09 360.00 359.00 0.0600% 0.06225%
68.00 04/01/09 300.00 299.00 0.0600% 0.06225%
69.00 12/10/08 360.00 355.00 0.0850% 0.08725%
70.00 10/01/08 360.00 360.00 0.0600% 0.06225%
71.00 02/10/09 300.00 297.00 0.0850% 0.08725%
72.00 12/10/08 360.00 355.00 0.0850% 0.08725%
73.00 12/10/08 360.00 355.00 0.0850% 0.08725%
74.00 03/01/20 264.00 250.00 0.0600% 0.06225%
75.00 11/01/08 360.00 354.00 0.0600% 0.06225%
76.00 09/01/08 300.00 292.00 Leasehold 0.0600% 0.06225%
77.00 12/01/08 360.00 355.00 0.0600% 0.06225%
78.00 10/01/08 300.00 293.00 0.0600% 0.06225%
79.00 03/10/09 360.00 358.00 0.0850% 0.08725%
80.00 07/01/08 240.00 230.00 0.0600% 0.06225%
80.01
80.02
80.03
81.00 05/10/09 360.00 360.00 0.0850% 0.08725%
82.00 03/01/09 360.00 358.00 0.0600% 0.06225%
83.00 02/10/09 300.00 297.00 0.0850% 0.08725%
84.00 12/10/08 360.00 355.00 0.0850% 0.08725%
85.00 12/01/08 360.00 360.00 0.0600% 0.06225%
86.00 12/10/08 360.00 355.00 0.0850% 0.08725%
87.00 06/01/16 270.00 259.00 0.0600% 0.19725%
88.00 04/01/09 300.00 299.00 0.0600% 0.06225%
89.00 03/01/20 264.00 250.00 0.0600% 0.06225%
90.00 03/01/09 300.00 298.00 0.0600% 0.06225%
91.00 01/10/09 360.00 356.00 0.0850% 0.08725%
92.00 08/01/20 296.00 287.00 0.0600% 0.06225%
93.00 11/01/08 360.00 354.00 0.0600% 0.06225%
94.00 03/10/09 360.00 358.00 0.0850% 0.08725%
95.00 06/01/16 270.00 259.00 0.0600% 0.19725%
96.00 04/01/09 360.00 359.00 0.0600% 0.06225%
97.00 04/01/09 240.00 239.00 0.0600% 0.06225%
98.00 04/01/09 360.00 359.00 0.0600% 0.06225%
99.00 11/10/08 360.00 354.00 0.0850% 0.08725%
100.00 05/10/09 360.00 360.00 0.0850% 0.08725%
101.00 05/01/08 240.00 228.00 Leasehold 0.0600% 0.06225%
102.00 04/01/09 360.00 359.00 0.0600% 0.06225%
103.00 06/10/09 360.00 360.00 0.0850% 0.08725%
104.00 10/01/08 360.00 353.00 0.0600% 0.06225%
105.00 11/10/08 360.00 354.00 0.0850% 0.08725%
106.00 05/10/09 360.00 360.00 0.0850% 0.08725%
107.00 11/01/23 300.00 294.00 0.0600% 0.06225%
107.01
107.02
107.03
107.04
108.00 05/01/08 360.00 348.00 0.0600% 0.06225%
109.00 06/01/16 270.00 259.00 0.0600% 0.19725%
110.00 08/10/13 180.00 171.00 0.0850% 0.08725%
111.00 06/01/16 270.00 259.00 0.0600% 0.19725%
112.00 08/01/08 360.00 351.00 0.0600% 0.06225%
113.00 06/01/20 315.00 304.00 0.0600% 0.06225%
114.00 04/01/09 300.00 299.00 0.0600% 0.06225%
115.00 02/10/09 360.00 357.00 0.0850% 0.08725%
116.00 02/10/09 360.00 357.00 0.0850% 0.08725%
117.00 11/01/08 360.00 354.00 0.0600% 0.06225%
118.00 08/01/13 240.00 231.00 0.0600% 0.06225%
119.00 11/01/18 240.00 234.00 0.0600% 0.06225%
120.00 04/01/09 360.00 359.00 0.0600% 0.06225%
121.00 06/10/09 360.00 360.00 0.0850% 0.08725%
122.00 06/01/20 315.00 304.00 0.0600% 0.06225%
123.00 03/01/20 264.00 250.00 0.0600% 0.06225%
124.00 05/01/09 324.00 324.00 0.0600% 0.06225%
125.00 09/01/18 239.00 232.00 0.0600% 0.06225%
126.00 11/01/08 240.00 234.00 0.0600% 0.06225%
127.00 12/01/13 228.00 224.00 0.0600% 0.06225%
128.00 02/01/09 300.00 297.00 0.0600% 0.06225%
129.00 12/01/08 360.00 355.00 0.0600% 0.06225%
130.00 09/01/08 300.00 292.00 Leasehold 0.0600% 0.06225%
131.00 02/01/09 360.00 357.00 0.0600% 0.06225%
132.00 12/01/18 241.00 235.00 0.0600% 0.06225%
133.00 04/01/09 360.00 359.00 0.0600% 0.06225%
134.00 01/01/19 246.00 236.00 0.0600% 0.06225%
135.00 10/01/18 239.00 233.00 0.0600% 0.06225%
136.00 02/01/09 300.00 297.00 0.0600% 0.06225%
137.00 06/01/20 325.00 314.00 0.0600% 0.06225%
138.00 04/01/09 360.00 359.00 0.0600% 0.06225%
139.00 04/01/09 360.00 359.00 0.0600% 0.06225%
140.00 03/01/09 360.00 358.00 0.0600% 0.06225%
141.00 03/01/09 360.00 358.00 0.0600% 0.06225%
142.00 03/01/20 264.00 250.00 0.0600% 0.06225%
143.00 03/01/09 360.00 358.00 0.0600% 0.06225%
144.00 02/01/09 360.00 357.00 0.0600% 0.06225%
145.00 08/01/18 238.00 231.00 0.0600% 0.06225%
146.00 03/01/09 300.00 298.00 0.0600% 0.06225%
147.00 06/01/20 325.00 314.00 0.0600% 0.06225%
148.00 04/10/09 360.00 359.00 0.0850% 0.08725%
148.01
148.02
148.03
149.00 12/01/08 360.00 355.00 0.0600% 0.06225%
150.00 03/01/20 264.00 250.00 0.0600% 0.06225%
151.00 11/01/08 300.00 294.00 0.0600% 0.06225%
152.00 01/01/09 360.00 356.00 0.0600% 0.06225%
153.00 02/01/09 300.00 297.00 0.0600% 0.06225%
154.00 04/01/09 360.00 359.00 0.0600% 0.06225%
155.00 08/01/13 240.00 231.00 0.0600% 0.06225%
156.00 03/10/09 360.00 358.00 0.0850% 0.08725%
157.00 12/01/08 360.00 355.00 0.0600% 0.06225%
158.00 03/01/09 360.00 358.00 0.0600% 0.06225%
159.00 02/01/09 330.00 327.00 0.0600% 0.06225%
160.00 03/01/09 240.00 238.00 0.0600% 0.06225%
161.00 03/01/28 360.00 346.00 0.0600% 0.06225%
162.00 11/01/08 360.00 354.00 0.0600% 0.06225%
162.01
162.02
162.03
163.00 03/01/09 300.00 298.00 0.0600% 0.06225%
164.00 03/01/09 300.00 298.00 0.0600% 0.06225%
165.00 03/01/09 360.00 358.00 0.0600% 0.06225%
166.00 11/01/08 360.00 354.00 0.0600% 0.06225%
166.01
166.02
166.03
166.04
166.05
167.00 03/01/09 360.00 358.00 0.0600% 0.06225%
168.00 05/01/18 235.00 228.00 0.0600% 0.06225%
169.00 12/01/18 239.00 235.00 0.0600% 0.06225%
170.00 11/10/08 360.00 354.00 0.1125% 0.11475%
171.00 06/01/08 240.00 229.00 Leasehold 0.0600% 0.06225%
172.00 04/01/09 300.00 299.00 0.0600% 0.06225%
173.00 10/01/05 360.00 353.00 0.0600% 0.06225%
174.00 09/01/11 300.00 292.00 0.0600% 0.06225%
175.00 07/01/18 236.00 230.00 0.0600% 0.06225%
176.00 12/01/08 300.00 295.00 0.0600% 0.06225%
177.00 04/01/09 360.00 359.00 0.0600% 0.06225%
178.00 04/01/09 300.00 299.00 0.0600% 0.06225%
179.00 09/01/11 300.00 292.00 0.0600% 0.06225%
180.00 05/01/18 235.00 228.00 Leasehold 0.0600% 0.06225%
181.00 04/01/09 360.00 359.00 0.0600% 0.06225%
182.00 03/01/20 264.00 250.00 0.0600% 0.06225%
183.00 09/01/11 300.00 292.00 0.0600% 0.06225%
184.00 12/01/08 360.00 355.00 0.0600% 0.06225%
185.00 09/01/11 300.00 292.00 0.0600% 0.06225%
186.00 11/01/08 360.00 354.00 0.0600% 0.06225%
187.00 09/01/11 300.00 292.00 0.0600% 0.06225%
188.00 04/01/09 360.00 359.00 0.0600% 0.06225%
189.00 03/01/09 360.00 358.00 0.0600% 0.06225%
190.00 05/01/23 297.00 288.00 0.0600% 0.06225%
191.00 09/01/11 300.00 292.00 0.0600% 0.06225%
192.00 03/01/09 300.00 298.00 0.0600% 0.06225%
193.00 01/01/13 175.00 164.00 0.0600% 0.06225%
194.00 09/01/11 300.00 292.00 0.0600% 0.06225%
195.00 09/01/11 300.00 292.00 0.0600% 0.06225%
196.00 09/01/11 300.00 292.00 0.0600% 0.06225%
197.00 09/01/11 300.00 292.00 0.0600% 0.06225%
198.00 09/01/11 300.00 292.00 0.0600% 0.06225%
199.00 09/01/11 300.00 292.00 0.0600% 0.06225%
200.00 09/01/11 300.00 292.00 0.0600% 0.06225%
201.00 09/01/11 300.00 292.00 0.0600% 0.06225%
202.00 09/01/11 300.00 292.00 0.0600% 0.06225%
203.00 09/01/11 300.00 292.00 0.0600% 0.06225%
204.00 09/01/11 300.00 292.00 0.0600% 0.06225%
205.00 09/01/11 300.00 292.00 0.0600% 0.06225%
206.00 09/01/11 300.00 292.00 0.0600% 0.06225%
207.00 09/01/11 300.00 292.00 0.0600% 0.06225%
208.00 09/01/11 300.00 292.00 0.0600% 0.06225%
209.00 09/01/11 300.00 292.00 0.0600% 0.06225%
210.00 09/01/11 300.00 292.00 0.0600% 0.06225%
211.00 09/01/11 300.00 292.00 0.0600% 0.06225%
212.00 09/01/11 300.00 292.00 0.0600% 0.06225%
213.00 09/01/11 300.00 292.00 0.0600% 0.06225%
214.00 02/01/29 360.00 357.00 0.0600% 0.06225%
215.00 03/01/09 240.00 238.00 0.0600% 0.06225%
216.00 12/01/12 171.00 163.00 0.0600% 0.06225%
217.00 11/01/08 360.00 354.00 0.0600% 0.06225%
218.00 06/01/16 270.00 259.00 0.0600% 0.19725%
219.00 03/01/09 360.00 358.00 0.0600% 0.06225%
220.00 11/01/08 360.00 354.00 0.0600% 0.06225%
221.00 03/01/09 360.00 358.00 0.0600% 0.06225%
222.00 11/01/08 360.00 354.00 0.0600% 0.06225%
223.00 02/01/09 300.00 297.00 0.0600% 0.06225%
(Table Continued)
SECURITIZATION ARD INTEREST MORTGAGE CTL TENANT CTL LEASE
CONTROL ARD INTEREST ACCRUAL LOAN CTL / ENHANCENENT
NUMBER LOANS RATE METHOD SELLER FLAG GUARANTOR POLICY OR RVI
----------------------------------------------------------------------------------------------------------------------------------
1.00 ARD 8.7500% Actual/360 CMB
1.01 CMB
1.02 CMB
1.03 CMB
2.00 Actual/360 FUNB
2.01 FUNB
2.02 FUNB
2.03 FUNB
2.04 FUNB
2.05 FUNB
2.06 FUNB
3.00 Actual/360 FUNB
4.00 30/360 CMB
5.00 30/360 CMB
5.01 CMB
5.02 CMB
5.03 CMB
6.00 Actual/360 CMB
7.00 ARD 8.5700% Actual/360 CMB
8.00 Actual/360 CMB
9.00 ARD 8.5700% Actual/360 CMB
10.00 ARD 8.5700% Actual/360 CMB
11.00 ARD 9.2130% Actual/360 CMB
12.00 Actual/360 FUNB
13.00 Actual/360 FUNB
14.00 Actual/360 FUNB
15.00 Actual/360 FUNB
16.00 Actual/360 FUNB
17.00 ARD 8.9500% Actual/360 CMB
18.00 Actual/360 CMB
19.00 Actual/360 CMB
20.00 Actual/360 FUNB
21.00 Actual/360 CMB
22.00 Actual/360 FUNB
23.00 Actual/360 CMB
24.00 Actual/360 CMB
25.00 Actual/360 CMB
26.00 Actual/360 FUNB
26.01 FUNB
26.02 FUNB
26.03 FUNB
26.04 FUNB
26.05 FUNB
26.06 FUNB
26.07 FUNB
26.08 FUNB
26.09 FUNB
26.10 FUNB
27.00 Actual/360 CMB
28.00 ARD 8.24% Actual/360 FUNB
29.00 Actual/360 CMB
30.00 Actual/360 CMB
31.00 Actual/360 FUNB
32.00 Actual/360 CMB
33.00 Actual/360 CMB
34.00 ARD 8.5700% Actual/360 CMB
35.00 Actual/360 CMB
35.01 CMB
35.02 CMB
36.00 Actual/360 FUNB
37.00 Actual/360 FUNB
37.01 FUNB
37.02 FUNB
38.00 Actual/360 FUNB
39.00 Actual/360 CMB
40.00 00/000 XXXX XXX Xxxxxxx Xxxx Stores, Inc BLI
41.00 ARD 8.5700% Actual/360 CMB
42.00 ARD 8.5700% Actual/360 CMB
43.00 Actual/360 CMB
44.00 Actual/360 FUNB
45.00 Actual/360 FUNB
46.00 Actual/360 FUNB
46.01 FUNB
46.02 FUNB
46.03 FUNB
46.04 FUNB
46.05 FUNB
47.00 Actual/360 CMB
48.00 Actual/360 CMB
49.00 Actual/360 FUNB
50.00 Actual/360 FUNB
51.00 Actual/360 FUNB
52.00 ARD 8.5700% Actual/360 CMB
53.00 Actual/360 FUNB
54.00 30/360 FUNB CTL Accor SA RVI
55.00 Actual/360 FUNB
56.00 Actual/360 FUNB
57.00 Actual/360 FUNB
58.00 ARD 8.5700% Actual/360 CMB
59.00 Actual/360 CMB
60.00 Actual/360 FUNB
61.00 Actual/360 CMB
62.00 30/360 FUNB CTL Xxxx-Xxxxx Stores, Inc. BLI / RVI
63.00 Actual/360 FUNB
64.00 Actual/360 FUNB
65.00 Actual/360 FUNB
66.00 Actual/360 FUNB
67.00 Actual/360 FUNB
68.00 Actual/360 FUNB
69.00 ARD 8.5700% Actual/360 CMB
70.00 Actual/360 FUNB
71.00 Actual/360 CMB
72.00 ARD 8.5700% Actual/360 CMB
73.00 Actual/360 CMB
74.00 Actual/360 FUNB
75.00 Actual/360 FUNB
76.00 Actual/360 FUNB
77.00 Actual/360 FUNB
78.00 Actual/360 FUNB
79.00 Actual/360 CMB
80.00 Actual/360 FUNB
80.01 FUNB
80.02 FUNB
80.03 FUNB
81.00 Actual/360 CMB
82.00 Actual/360 FUNB
83.00 Actual/360 CMB
84.00 ARD 8.5700% Actual/360 CMB
85.00 Actual/360 FUNB
86.00 Actual/360 CMB
87.00 30/360 FUNB CTL Accor SA RVI
88.00 Actual/360 FUNB
89.00 Actual/360 FUNB
90.00 Actual/360 FUNB
91.00 Actual/360 CMB
92.00 30/360 FUNB CTL Eagle Food Centers, Inc. BLI / RVI
93.00 Actual/360 FUNB
94.00 Actual/360 CMB
95.00 30/360 FUNB CTL Accor SA RVI
96.00 Actual/360 FUNB
97.00 Actual/360 FUNB
98.00 Actual/360 FUNB
99.00 Actual/360 CMB
100.00 Actual/360 CMB
101.00 Actual/360 FUNB
102.00 Actual/360 FUNB
103.00 Actual/360 CMB
104.00 Actual/360 FUNB
105.00 Actual/360 CMB
106.00 Actual/360 CMB
107.00 Actual/360 FUNB
107.01 FUNB
107.02 FUNB
107.03 FUNB
107.04 FUNB
108.00 Actual/360 FUNB
109.00 30/360 FUNB CTL Accor SA RVI
110.00 Actual/360 CMB
111.00 30/360 FUNB CTL Accor SA RVI
112.00 Actual/360 FUNB
113.00 30/360 FUNB CTL Rite Aid Corp. FSL
114.00 Actual/360 FUNB
115.00 Actual/360 CMB
116.00 Actual/360 CMB
117.00 Actual/360 FUNB
118.00 Actual/360 FUNB
119.00 30/360 FUNB CTL Walgreen Company BLI
120.00 Actual/360 FUNB
121.00 Actual/360 CMB
122.00 30/360 FUNB CTL Rite Aid Corp. FSL
123.00 Actual/360 FUNB
124.00 Actual/360 FUNB
125.00 30/360 FUNB CTL Walgreen Company BLI
126.00 Actual/360 FUNB
127.00 30/360 FUNB CTL Staples, Inc. BLI / RVI
128.00 Actual/360 FUNB
129.00 Actual/360 FUNB
130.00 Actual/360 FUNB
131.00 Actual/360 FUNB
132.00 30/360 FUNB CTL Walgreen Company BLI
133.00 Actual/360 FUNB
134.00 30/360 FUNB CTL CVS Corp. BLI
135.00 30/360 FUNB CTL Walgreen Company BLI
136.00 Actual/360 FUNB
137.00 30/360 FUNB CTL Rite Aid Corp. FSL
138.00 Actual/360 FUNB
139.00 Actual/360 FUNB
140.00 Actual/360 FUNB
141.00 Actual/360 FUNB
142.00 Actual/360 FUNB
143.00 Actual/360 FUNB
144.00 Actual/360 FUNB
145.00 30/360 FUNB CTL Eckerd Corporation BLI
146.00 Actual/360 FUNB
147.00 30/360 FUNB CTL Rite Aid Corp. FSL
148.00 Actual/360 CMB
148.01 CMB
148.02 CMB
148.03 CMB
149.00 Actual/360 FUNB
150.00 Actual/360 FUNB
151.00 Actual/360 FUNB
152.00 Actual/360 FUNB
153.00 Actual/360 FUNB
154.00 Actual/360 FUNB
155.00 Actual/360 FUNB
156.00 Actual/360 CMB
157.00 Actual/360 FUNB
158.00 Actual/360 FUNB
159.00 Actual/360 FUNB
160.00 Actual/360 FUNB
161.00 Actual/360 FUNB
162.00 Actual/360 FUNB
162.01 FUNB
162.02 FUNB
162.03 FUNB
163.00 Actual/360 FUNB
164.00 30/360 FUNB
165.00 30/360 FUNB
166.00 Actual/360 FUNB
166.01 FUNB
166.02 FUNB
166.03 FUNB
166.04 FUNB
166.05 FUNB
167.00 Actual/360 FUNB
168.00 30/360 FUNB CTL Eckerd Corporation BLI
169.00 30/360 FUNB CTL CVS Corp. BLI
170.00 Actual/360 CMB
171.00 Actual/360 FUNB
172.00 Actual/360 FUNB
173.00 Actual/360 FUNB
174.00 Actual/360 FUNB
175.00 30/360 FUNB CTL Eckerd Corporation BLI
176.00 Actual/360 FUNB
177.00 Actual/360 FUNB
178.00 Actual/360 FUNB
179.00 Actual/360 FUNB
180.00 30/360 FUNB CTL CVS Corp. BLI
181.00 Actual/360 FUNB
182.00 Actual/360 FUNB
183.00 Actual/360 FUNB
184.00 Actual/360 FUNB
185.00 Actual/360 FUNB
186.00 Actual/360 FUNB
187.00 Actual/360 FUNB
188.00 Actual/360 FUNB
189.00 Actual/360 FUNB
190.00 30/360 FUNB CTL IHOP Corp. BLI
191.00 Actual/360 FUNB
192.00 30/360 FUNB
193.00 30/360 FUNB CTL CVS Corp. BLI
194.00 Actual/360 FUNB
195.00 Actual/360 FUNB
196.00 Actual/360 FUNB
197.00 Actual/360 FUNB
198.00 Actual/360 FUNB
199.00 Actual/360 FUNB
200.00 Actual/360 FUNB
201.00 Actual/360 FUNB
202.00 Actual/360 FUNB
203.00 Actual/360 FUNB
204.00 Actual/360 FUNB
205.00 Actual/360 FUNB
206.00 Actual/360 FUNB
207.00 Actual/360 FUNB
208.00 Actual/360 FUNB
209.00 Actual/360 FUNB
210.00 Actual/360 FUNB
211.00 Actual/360 FUNB
212.00 Actual/360 FUNB
213.00 Actual/360 FUNB
214.00 30/360 FUNB
215.00 Actual/360 FUNB
216.00 30/360 FUNB CTL The Southland Corporation BLI
217.00 Actual/360 FUNB
218.00 30/360 FUNB CTL Accor SA RVI
219.00 Actual/360 FUNB
220.00 Actual/360 FUNB
221.00 Actual/360 FUNB
222.00 Actual/360 FUNB
223.00 Actual/360 FUNB
(Table Continued)
CROSS-
COLLATERALIZED
SECURITIZATION SEMI- CUTOFF AND CROSS- SECURED BY
CONTROL ANNUAL DATE DEFAULTED PREPAYMENT A LETTER OF
NUMBER LOAN DSCR (X) LTV (%) GROUPS PROVISIONS CREDIT?
-----------------------------------------------------------------------------------------------------------------------------------
1.00 1.55 66.2% L(2.5),D(7.5)
1.01
1.02
1.03
2.00 1.30 67.5% L(4),D(5.75),O(.25)
2.01
2.02
2.03
2.04
2.05
2.06
3.00 1.22 80.0% L(3),D(6.5),O(.5)
4.00 1.40 69.2% L(3),YM1%(6.75),O(.25)
5.00 1.23 69.8% L(4),YM1%(6.75),O(.25)
5.01
5.02
5.03
6.00 1.20 79.3% L(2.08),D(7.42),O(.5)
7.00 1.43 73.3% L(2.33),D(7.42),O(.25)
8.00 1.31 59.0% L(3),YM1%(6.5),O(.5)
9.00 1.48 74.7% L(2.33),D(7.42),O(.25)
10.00 1.44 51.7% L(2.33),D(7.42),O(.25)
11.00 1.56 64.3% L(2.5),D(6.75),O(.5)
12.00 1.25 73.2% L(4),D(5.66),O(.34)
13.00 1.25 64.7% L(4),D(5.75),O(.25)
14.00 1.20 79.9% L(4),D(5.75),O(.25)
15.00 1.20 76.2% L(4),D(5.75),O(.25)
16.00 1.39 72.5% L(4),D(5.75),O(.25)
17.00 1.37 79.4% L(2.67),D(6.83),O(.5)
18.00 1.44 73.2% L(2.33),D(4.42),O(.25)
19.00 1.24 73.5% L(2),D(7.75),O(.25)
20.00 1.46 58.8% L(4),D(5.75),O(.25)
21.00 1.25 78.3% L(1.92),D(7.83),O(.25)
22.00 1.60 51.7% L(2.8),D(1.2),YM1%(7)
23.00 1.40 78.9% L(3),YM1%(11.75),O(.25)
24.00 1.20 68.3% L(2.08),D(7.42),O(.5)
25.00 1.21 73.8% L(1.83),D(7.92),O(.25)
26.00 1.23 76.5% L(4),D(5.75),O(.25)
26.01
26.02
26.03
26.04
26.05
26.06
26.07
26.08
26.09
26.10
27.00 1.32 72.9% L(2.25),D(2.5),O(.25)
28.00 1.28 80.6% L(4),D(5.75),O(.25)
29.00 1.27 80.8% L(2.08),D(7.42),O(.5)
30.00 1.32 74.1% L(1.92),D(7.83),O(.25)
31.00 1.19 67.9% L(2.75),D(16.75),O(.5) YES
32.00 1.37 73.5% L(2.75),D(7),O(.25)
33.00 1.20 72.7% L(2),D(7.75),O(.25)
34.00 1.43 74.7% L(2.33),D(7.42),O(.25)
35.00 1.20 75.2% L(2.33),D(7.17),O(.5)
35.01
35.02
36.00 1.24 71.9% L(4),D(5.75),O(.25)
37.00 1.21 67.4% L(2.83),D(6.92),O(.25)
37.01
37.02
38.00 1.25 79.8% L(4),D(5.75),O(.25)
39.00 1.53 74.5% L(2.42),D(7.33),O(.25)
40.00 1.15 88.3% L(4),D(16)
41.00 1.43 71.1% L(2.33),D(7.42),O(.25)
42.00 1.43 72.4% L(2.33),D(7.42),O(.25)
43.00 1.21 79.3% L(2),D(7.75),O(.25)
44.00 1.27 75.5% L(4),D(5.75),O(.25)
45.00 1.25 70.8% L(4),D(5.75),O(.25)
46.00 1.28 73.6% L(4),D(5.75),O(.25)
46.01
46.02
46.03
46.04
46.05
47.00 1.21 74.5% L(1.83),D(7.92),O(.25)
48.00 1.36 74.4% L(2.75),D(7),O(.25)
49.00 1.35 57.5% L(3),D(6.75),O(.25)
50.00 1.33 73.0% L(3),D(7)
51.00 1.21 74.4% L(4),D(5.5),O(.5)
52.00 1.53 74.7% L(2.33),D(7.42),O(.25)
53.00 1.41 69.9% L(5),D(4.75),O(.25)
54.00 YES 1.00 94.5% L(2),YM(16)
55.00 1.27 69.8% L(4),D(5.75),O(.25)
56.00 1.51 73.3% L(4),D(5.75),O(.25)
57.00 1.42 72.5% L(4),D(6.08)
58.00 1.43 70.7% L(2.33),D(7.42),O(.25)
59.00 1.20 79.3% L(2.08),D(7.42),O(.5)
60.00 1.20 78.6% L(2),D(7.75),O(.25)
61.00 1.21 76.6% L(1.83),D(7.92),O(.25)
62.00 1.00 97.2% L(4),D(16)
63.00 1.41 73.8% L(4),D(5.75),O(.25)
64.00 1.27 74.4% L(4),D(5.5),O(.5)
65.00 1.93 43.6% L(7),D(7.75),O(.25)
66.00 1.40 74.4% L(4),D(5.75),O(.25)
67.00 1.31 79.9% L(4),D(5.75),O(.25)
68.00 1.34 53.6% L(4),D(5.75),O(.25)
69.00 1.50 74.7% L(2.33),D(7.42),O(.25)
70.00 1.25 80.0% L(4),D(5.75),O(.25)
71.00 1.28 73.6% L(2.17),D(7.58),O(.25)
72.00 1.50 74.7% L(2.33),D(7.42),O(.25)
73.00 1.21 79.7% L(2.33),D(7.42),O(.25)
74.00 1.75 66.6% BMI L(5),D(10),1.5%(6),O(1)
75.00 1.33 78.9% L(2.5),D(7.25),O(.25)
76.00 1.40 72.9% L(4),D(5.75),O(.25)
77.00 1.38 72.5% L(5),D(4.75),O(.25)
78.00 1.39 67.0% L(2.58),D(7.17),O(.25)
79.00 1.22 79.9% L(2.33),D(7.17),O(.5)
80.00 1.79 65.4% L(3),D(6.5),O(.5)
80.01
80.02
80.03
81.00 1.32 66.2% L(2),D(7.75),O(.25)
82.00 1.32 78.0% L(4),D(5.75),O(.25)
83.00 1.27 72.2% L(2.17),D(7.58),O(.25)
84.00 1.47 74.7% L(2.33),D(7.42),O(.25)
85.00 1.65 59.3% L(4),D(5.75),O(.25)
86.00 1.27 54.5% L(2.33),D(7.42),O(.25)
87.00 YES 1.00 94.5% L(2),YM(16)
88.00 1.40 74.9% L(3.75),D(6),O(.25)
89.00 2.45 46.1% BMI L(5),D(10),1.5%(6),O(1)
90.00 1.30 73.7% L(4),D(5.75),O(.25)
91.00 1.34 67.0% L(2.25),D(7.5),O(.25)
92.00 1.03 93.9% L(4),D(18)
93.00 1.33 75.6% L(4),D(5.75),O(.25)
94.00 1.20 79.9% L(2.08),D(7.42),O(.5)
95.00 YES 1.00 94.5% L(2),YM(16)
96.00 1.25 71.8% L(5),D(5)
97.00 1.31 74.9% L(4),D(5.75),O(.25)
98.00 1.30 72.8% L(4),D(5.75),O(.25)
99.00 1.27 79.6% L(2.42),D(7.33),O(.25)
100.00 1.25 74.5% L(1.92),D(7.83),O(.25)
101.00 1.41 68.6% L(4),D(5.75),O(.25)
102.00 1.29 67.4% L(4),D(5.75),O(.25)
103.00 1.32 74.5% L(1.83),D(7.92),O(.25)
104.00 4.42 23.7% L(5),D(4.75),O(.25)
105.00 1.41 78.9% L(3),YM(6.75),O(.25)
106.00 1.30 74.9% L(1.92),D(7.83),O(.25)
107.00 1.43 77.1% L(3),D(21.75),O(.25)
107.01
107.02
107.03
107.04
108.00 1.82 67.3% L(5),D(4.75),O(.25)
109.00 YES 1.00 94.5% L(2),YM(16)
110.00 1.25 66.1% L(2.67),D(12.08),O(.25)
111.00 YES 1.00 94.5% L(2),YM(16)
112.00 1.62 77.6% L(5),D(4.75),O(.25)
113.00 1.00 97.0% L(4),D(18)
114.00 1.31 64.5% L(4),D(5.75),O(.25)
115.00 1.29 74.8% L(2.17),D(7.58),O(.25)
116.00 1.34 71.5% L(2.17),D(7.58),O(.25)
117.00 1.27 70.6% L(4),D(5.75),O(.25)
118.00 1.25 70.3% L(4),D(10.75),O(.25)
119.00 1.13 79.0% L(8),D(12)
120.00 1.27 76.7% L(4),D(5.75),O(.25)
121.00 1.22 73.2% L(1.83),D(7.92),O(.25)
122.00 1.00 97.0% L(4),D(18)
123.00 1.18 100.2% BMI L(5),D(10),1.5%(6),O(1)
124.00 1.31 75.0% L(4),D(5.75),O(.25)
125.00 1.00 90.0% L(8),D(11.92)
126.00 1.64 65.1% L(5),D(4.75),O(.25)
127.00 1.00 93.9% L(4),D(10.92)
128.00 1.30 66.0% L(3),D(6.75),O(.25)
129.00 1.44 75.2% L(3),D(6.75),O(.25)
130.00 1.41 72.2% L(4),D(5.75),O(.25)
131.00 1.36 79.8% L(4),D(5.75),O(.25)
132.00 1.05 86.2% L(4),D(16.08)
133.00 1.30 63.2% L(4),D(5.75),O(.25)
134.00 1.01 94.7% L(4),D(16.5)
135.00 1.00 91.1% L(4),D(15.92)
136.00 1.35 57.7% L(4),D(5.75),O(.25)
137.00 1.00 97.2% L(4),D(18)
138.00 1.20 78.8% L(4),D(5.75),O(.25)
139.00 1.22 79.9% L(4),D(5.75),O(.25)
140.00 1.40 79.9% L(3),D(6.75),O(.25)
141.00 1.76 49.0% L(4),D(5.75),O(.25)
142.00 1.50 64.9% BMI L(5),D(10),1.5%(6),O(1)
143.00 1.28 66.1% L(4),D(5.75),O(.25)
144.00 1.56 74.8% L(4),D(5.75),O(.25)
145.00 1.00 93.0% L(4),D(15.83)
146.00 1.25 78.6% L(4),D(5.75),O(.25)
147.00 1.00 98.2% L(4),D(18)
148.00 1.30 61.5% L(2),D(7.75),O(.25)
148.01
148.02
148.03
149.00 1.25 78.2% L(4),D(5.75),O(.25)
150.00 1.26 78.0% BMI L(5),D(10),1.5%(6),O(1)
151.00 1.59 65.7% L(3),D(6.75),O(.25)
152.00 1.29 77.2% L(4),D(5.75),O(.25)
153.00 1.35 74.7% L(4),D(5.75),O(.25)
154.00 1.31 79.6% L(4),D(5.75),O(.25)
155.00 1.27 72.2% L(4),D(10.75),O(.25)
156.00 1.25 69.9% L(2.08),D(7.67),O(.25)
157.00 1.42 56.5% L(5),D(4.75),O(.25)
158.00 1.29 75.5% L(4),D(5.75),O(.25)
159.00 1.38 73.9% L(3),D(6.75),O(.25)
160.00 1.48 71.2% L(4),D(5.75),O(.25)
161.00 1.23 74.2% L(4),YM1%(6),1% (19.75),O(.25) YES
162.00 1.81 68.5% Summit L(4),D(5.75),O(.25)
162.01
162.02
162.03
163.00 1.27 77.3% L(3),D(6.75),O(.25)
164.00 1.41 74.9% L(4),D(5.75),O(.25)
165.00 1.26 60.7% L(4),D(5.75),O(.25)
166.00 1.34 68.9% L(3),D(6.75),O(.25)
166.01
166.02
166.03
166.04
166.05
167.00 1.25 77.6% L(4),D(5.75),O(.25)
168.00 1.06 87.6% L(8),YM(11.58)
169.00 1.00 93.9% L(4),D(15.92)
170.00 1.66 62.8% L(2.42),D(7.33),O(.25)
171.00 1.40 68.0% L(4),D(6)
172.00 1.27 72.3% L(4),D(5.75),O(.25)
173.00 1.32 69.4% L(4),D(2.75),O(.25)
174.00 1.31 67.7% L(2.67),D(10.33)
175.00 1.00 90.9% L(4),D(15.66)
176.00 1.32 65.8% L(4),D(5.75),O(.25)
177.00 1.29 79.9% L(4),D(5.75),O(.25)
178.00 1.30 72.7% L(4),D(5.75),O(.25)
179.00 1.31 67.7% L(2.67),D(10.33)
180.00 1.03 98.1% L(4),D(15.58)
181.00 1.27 79.9% L(4),D(5.75),O(.25)
182.00 1.49 65.6% BMI L(5),D(10),1.5%(6),O(1)
183.00 1.31 67.7% L(2.67),D(10.33)
184.00 1.53 72.9% L(5),D(4.75),O(.25)
185.00 1.31 67.7% L(2.67),D(10.33)
186.00 1.14 68.5% Summit L(4),D(5.75),O(.25)
187.00 1.31 67.7% L(2.67),D(10.33)
188.00 1.31 77.7% L(4),D(5),O(1)
189.00 1.47 53.2% L(4),D(5.75),O(.25)
190.00 1.10 99.3% L(4),D(20.75)
191.00 1.31 67.7% L(2.67),D(10.33)
192.00 1.25 71.3% L(4),D(5.75),O(.25)
193.00 1.00 81.7% L(4),D(10.58)
194.00 1.31 67.7% L(2.67),D(10.33)
195.00 1.31 67.7% L(2.67),D(10.33)
196.00 1.31 67.7% L(2.67),D(10.33)
197.00 1.31 67.7% L(2.67),D(10.33)
198.00 1.31 67.7% L(2.67),D(10.33)
199.00 1.31 67.7% L(2.67),D(10.33)
200.00 1.31 67.7% L(2.67),D(10.33)
201.00 1.31 67.7% L(2.67),D(10.33)
202.00 1.31 66.8% L(2.67),D(10.33)
203.00 1.31 67.7% L(2.67),D(10.33)
204.00 1.31 67.7% L(2.67),D(10.33)
205.00 1.31 67.7% L(2.67),D(10.33)
206.00 1.31 67.7% L(2.67),D(10.33)
207.00 1.31 67.7% L(2.67),D(10.33)
208.00 1.31 67.7% L(2.67),D(10.33)
209.00 1.31 67.7% L(2.67),D(10.33)
210.00 1.31 67.7% L(2.67),D(10.33)
211.00 1.31 67.7% L(2.67),D(10.33)
212.00 1.31 67.7% L(2.67),D(10.33)
213.00 1.31 67.7% L(2.67),D(10.33)
214.00 1.18 79.4% L(10),1%(20)
215.00 1.32 63.0% L(3),D(7)
216.00 1.05 85.5% L(8),YM1%(6.25)
217.00 1.38 68.5% Summit L(4),D(5.75),O(.25)
218.00 YES 1.00 94.5% L(2),YM(16)
219.00 1.52 53.2% L(4),D(5.75),O(.25)
220.00 1.34 62.6% Highland L(4),D(5.75),O(.25)
221.00 1.25 74.9% L(4),D(5.75),O(.25)
222.00 1.63 62.6% Highland L(4),D(5.75),O(.25)
223.00 1.25 55.0% L(4),D(5.75),O(.25)
(Table Continued)
LOANS
WITH
ONGOING
ESCROWS
FOR
POTENTIAL
ENGIN FUTURE
SECURITIZATION INTEREST DEF MAINT ENVIRONMENTAL INIT TENANT
CONTROL RESERVE ESCROW ESCROW TI/LC ROLLOVER
NUMBER LOAN (?) LOCKBOX ($) @ CLOSE @ CLOSE RESERVE COSTS
------------------------------------------------------------------------------------------------------------------------------
1.00 YES YES 29,375.00
1.01
1.02
1.03
2.00 YES Springing 125,450.00 50,000.00 750,000.00
2.01 Springing 65,062.50 123,750.00
2.02 Springing 28,006.25 74,250.00
2.03 Springing 7,875.00 114,750.00
2.04 Springing 10,818.75 50,000.00 142,500.00
2.05 Springing 255,000.00
2.06 Springing 13,687.50 39,750.00
3.00 YES
4.00 35,313.00
5.00 327,712.00
5.01
5.02
5.03
6.00 YES 40,625.00
7.00 YES Springing 48,656.00
8.00 YES 17,125.00 YES
9.00 YES Springing YES
10.00 YES Springing 3,125.00
11.00 YES Springing
12.00 YES YES
13.00 YES 47,750.00 937.50
14.00 YES
15.00 YES 5,750.00
16.00 YES
17.00 YES YES
18.00 YES 3,666.68
19.00 YES 6,595.00
20.00 YES 159,775.00
21.00 YES
22.00 YES
23.00 YES 17,888.00 YES
24.00 YES 41,406.00
25.00 YES 4,875.00
26.00 YES 124,363.75 75,000.00
26.01 16,388.75 12,500.00
26.02 4,942.50
26.03 12,440.00
26.04 4,458.75
26.05 5,676.25 12,500.00
26.06 6,437.50 12,500.00
26.07 7,767.50 12,500.00
26.08 9,020.00 12,500.00
26.09 52,486.25 12,500.00
26.10 4,746.25
27.00 YES 96,938.00 50,000.00
28.00 YES Springing 175,500.00 30,000.00
29.00 YES 111,113.00
30.00 YES 10,500.00
31.00 YES
32.00 YES 400,000.00 YES
33.00 YES 29,610.00
34.00 YES Springing 1,938.00 21,984.00 YES
35.00 YES 80,184.00
35.01
35.02
36.00 YES 2,187.50
37.00 YES 236,181.25
37.01 3,125.00
37.02 233,056.25
38.00 YES 14,981.25
39.00 YES 21,400.00
40.00 YES 20,000.00
41.00 YES Springing 3,000.00 YES
42.00 YES Springing 2,500.00 YES
43.00 YES 261,574.00
44.00 YES 437.50 200,000.00
45.00 YES
46.00 YES 49,750.00
46.01 8,625.00
46.02 20,687.50
46.03 2,687.50
46.04 3,437.50
46.05 3,750.00
47.00 YES
48.00 YES 118,320.00 118,320.00
49.00 YES 5,625.00 1,033,731.00
50.00 YES 41,875.00 YES
51.00 YES 750.00
52.00 YES Springing
53.00 YES 86,706.25 450,000.00
54.00 YES
55.00 YES 1,562.50 1,500.00
56.00 YES
57.00 YES
58.00 YES Springing YES
59.00 YES 3,750.00
60.00 YES 250.00 625.00
61.00 YES 3,500.00
62.00 YES
63.00 YES
64.00 YES 1,125.00
65.00 YES YES 66,026.25
66.00 YES 28,812.50 7,500.00
67.00 YES 5,000.00
68.00 YES 27,265.00
69.00 YES Springing 8,000.00
70.00 YES
71.00 YES 53,833.34 YES
72.00 YES Springing 8,000.00
73.00 YES 12,500.00
74.00 YES 8,906.25
75.00 YES 9,073.50
76.00 YES
77.00 YES 4,875.00 105,000.00
78.00 YES 14,031.00
79.00 YES 4,169.00
80.00 YES 3,000.00
80.01 1,500.00
80.02 1,500.00
80.03
81.00 YES
82.00 YES 200,000.00 YES
83.00 YES 3,966.68 YES
84.00 YES Springing 1,625.00
85.00 YES Springing YES
86.00 YES 28,000.00
87.00 YES
88.00 YES 158,416.25 500,000.00
89.00 YES 14,062.50
90.00 YES
91.00 YES 1,875.00
92.00 YES
93.00 YES 100,000.00
94.00 YES 2,000.00
95.00 YES
96.00 YES
97.00 YES 23,500.00 28,750.00
98.00 YES
99.00 YES 1,750.00 53,480.01 YES
100.00 YES 125,000.00 YES
101.00 YES 21,125.00
102.00 YES
103.00 YES 19,375.00
104.00 YES 47,593.75 250,000.00
105.00 YES 5,094.00
106.00 YES
107.00 YES 2,500.00
107.01 1,187.50
107.02
107.03 1,187.50
107.04 125.00
108.00 YES
109.00 YES
110.00 YES 262,000.00 23,080.00 YES
111.00 YES
112.00 YES
113.00 YES
114.00 YES YES
115.00 YES 373.00
116.00 YES
117.00 YES 29,000.00
118.00 YES 21,875.00
119.00 YES
120.00 YES 2,437.50 437.50
121.00 YES 1,000.00
122.00 YES
123.00 YES
124.00 YES 22,000.00
125.00 YES
126.00 YES 4,500.00
127.00 YES 1,875.00
128.00 YES 750.00
129.00 YES 8,750.00
130.00 YES
131.00 YES 18,750.00
132.00 YES
133.00 YES 4,062.50 80,000.00
134.00 YES
135.00 YES 4,375.00
136.00 YES 375.00 1,525.00
137.00 YES
138.00 YES
139.00 YES 14,250.00
140.00 YES 47,750.00
141.00 YES
142.00 YES 17,125.00 5,644.00
143.00 YES 75,000.00 YES
144.00 YES
145.00 YES
146.00 YES 9,493.75
147.00 YES
148.00 YES 10,188.00 YES
148.01
148.02
148.03
149.00 YES
150.00 YES
151.00 YES 4,976.00
152.00 YES 10,187.50
153.00 YES 375.00 YES
154.00 YES
155.00 YES 2,306.25
156.00 YES 1,250.00
157.00 YES 34,450.00 10,000.00 YES
158.00 YES 67,687.50 956.25
159.00 YES
160.00 YES
161.00 YES 10,162.50
162.00 YES 940.50
162.01
162.02
162.03
163.00 YES 33,942.11
164.00 28,662.50 1,250.00 80000 LOC
165.00 2,903.75 70000 LOC
166.00 YES 45,187.50 11,875.00
166.01 10,000.00 3,125.00
166.02 8,750.00 3,125.00
166.03 7,750.00 4,375.00
166.04 4,937.50
166.05 13,750.00 1,250.00
167.00 YES 1,000.00
168.00 YES
169.00 YES
170.00 YES 39,813.00
171.00 YES 10,500.00
172.00 YES 2,500.00 115,000.00
173.00 YES 502,000.00
174.00 YES YES
175.00 YES
176.00 YES YES
177.00 YES
178.00 YES 72,562.50
179.00 YES YES
180.00 YES
181.00 YES
182.00 YES 11,343.75
183.00 YES YES
184.00 YES 13,875.00
185.00 YES YES
186.00 YES 684.00
187.00 YES YES
188.00 YES 11,875.00 3,750.00
189.00 YES
190.00 YES
191.00 YES YES
192.00 7,375.00 2,500.00 80000 (LOC)
193.00 YES 875.00
194.00 YES YES
195.00 YES YES
196.00 YES YES
197.00 YES YES
198.00 YES YES
199.00 YES YES
200.00 YES YES
201.00 YES YES
202.00 YES YES
203.00 YES YES
204.00 YES YES
205.00 YES YES
206.00 YES YES
207.00 YES YES
208.00 YES YES
209.00 YES YES
210.00 YES YES
211.00 YES YES
212.00 YES YES
213.00 YES YES
214.00
215.00 YES 19,312.50 YES
216.00 YES
217.00 YES 513.00
218.00 YES
219.00 YES
220.00 YES 393.75
221.00 YES
222.00 YES 262.50
223.00 YES 14,000.00
Explanation of Footnotes:
(1) Periodic Payments for certain loans (the "Step" loans) are not fixed over
the loan term. Refer to Annex A-2 of the Prospectus Supplement for
specific Periodic Payment schedules for these loans.
EXHIBIT C-1
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
LOANID LOAN NAME DOC TYPE EXCEPTION COMMENTS
171999C2 VILLAGE WEST SH POA Missing NOTE SIGNED BY XXXXXX XXXXXX,
ATT. IN FACT FOR X.X.XXXXXXX
301999C2 353 LEXINGTON A MODF Certified True Copy MODF OF NOTE SENT FOR RECORDING
371999C2 MERCY WELLNESS NOTE Missing COPY OF NOTE RECEIVED
661999C2 KJELLBURG MOBIL NOTE Missing COPY OF NOTE RECEIVED
661999C2 KJELLBURG MOBIL NOTE Pages Are Missing From Document PAGE 8 MISSING FROM COPY OF NOTE
901999C2 XXXXXXX XXXXXX XXXX Xxxxxxx
000000X0 XXXXX XXXXXXXXX NOTE Missing
1341999C2 CVS YARMOUTH MA NOTE Missing COPY OF NOTE RECEIVED
0000000X0 COSMOPOLITAN AP NOTE Missing COPY OF NOTE RECEIVED
1481999C2 CENTRE FINANCIA MODF Certified True Copy AGREEMENT OF CONSOLIDATION, MODF
& SPREADER OF NOTE & MTG
1681999C2 ECKERD XXXXXX T NOTE Missing COPY OF NOTE RECEIVED
1681999C2 ECKERD XXXXXX T NOTE Loan Amount Does Not Agree With Schedule NOTE COPY=$1,877,270 SCHD=$1,861,865
1721999C2 ISLAND LAKE MOB NOTE Loan Amount Does Not Agree With Schedule NOTE = 1,737,000; SCHD = 1,766,000
1781999C2 THE PALMS OF SA NOTE Missing COPY OF NOTE RECEIVED
2141999C2 XXXXXXXXX SQUAR NOTE Missing
2161999C2 SOUTHLAND XXXXX NOTE Missing COPY OF NOTE RECEIVED
2161999C2 SOUTHLAND XXXXX NOTE Loan Amount Does Not Agree With Schedule NOTE COPY=$1,090,479 SCHD=$1,085,792
2231999C2 SPRING MARKET S NOTE Missing COPY OF NOTE RECEIVED
EXHIBIT C-2
FORM OF CUSTODIAL CERTIFICATION
[Date]
Banc One Mortgage Capital Markets
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention Xxxxx X. Xxxxx, XX
Xxxxx Manhattan Bank
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
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 - URP4, NC 1075
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: First Union National Bank-Chase Manhattan Bank Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 1999-C2
Re: First Union National Bank-Chase Manhattan Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 1999-C2
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 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:______________________
cc: Xxxx X. Xxxxx, Banc One Mortgage Capital Markets, LLC
0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
Norwest Bank Minnesota, National Association
0000 00xx Xxxxxx X.X.
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Corporate Trust Services (CMBS) - First Union National Bank- Chase
Manhattan Bank, Series 1999-C2
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by
you as Trustee under a certain Pooling and Servicing Agreement dated as of May
1, 1999 (the "Pooling and Servicing Agreement"), by and among First Union
Commercial Mortgage Securities, Inc., as Depositor, First Union National Bank,
as Master Servicer, Banc One Mortgage 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:
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
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attn: Corporate Trust Services (CMBS) - First Union National Bank-
Chase Manhattan Bank, Series 1999-C2
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by
you as Trustee under a certain Pooling and Servicing Agreement dated as of May
1, 1999 (the "Pooling and Servicing Agreement"), by and among First Union
Commercial Mortgage Securities, Inc., as Depositor, First Union National Bank,
as Master Servicer, Banc One Mortgage 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:
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.
BANC ONE MORTGAGE
CAPITAL MARKETS, LLC,
as Special Servicer
By: _______________________________
Name:
Title:
EXHIBIT E-1
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
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.
EXHIBIT F
[RESERVED]
EXHIBIT G-1
FORM OF TRANSFEROR CERTIFICATE
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services (CMBS) - First Union National Bank-
Chase Manhattan Bank, Series 1999-C2
Re: First Union National Bank-Chase Manhattan Bank
Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an
initial principal balance as of May 24, 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 May 1, 1999,
among First Union Commercial Mortgage Securities, Inc., as depositor, First
Union National Bank, as master servicer, Banc One Mortgage 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) 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:________________________
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE
FOR QIBs
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services (CMBS) - First Union National Bank-
Chase Manhattan Bank, Series 1999-C2
Re: First Union National Bank-Chase Manhattan Bank
Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an
initial principal balance as of May 24, 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 May 1, 1999,
among First Union Commercial Mortgage Securities, Inc., as depositor, First
Union National Bank, as master servicer, Banc One Mortgage 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.
2. The Transferee has been furnished with all information regarding
(a) the Certificates and distributions thereon, (b) the nature,
performance and servicing of the Mortgage Loans, (c) the Pooling and
Servicing Agreement, and (d) any credit enhancement mechanism
associated with the Certificates, that it has requested.
3. The Transferee understands that it may not sell or otherwise
transfer any portion of its interest in the Transferred Certificate
except in compliance with the provisions of Section 5.02 of the
Pooling and Servicing Agreement, which provisions it has carefully
reviewed, and that the Transferred Certificate will bear legends
substantially to the following effect:
THE CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
- AND -
[NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO
IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE
REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED
HEREIN.]
- OR -
[NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE
(A) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT,
INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS
AND COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS IN WHICH SUCH
PLANS, ACCOUNTS OR ARRANGEMENTS ARE INVESTED, THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE") (ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, A "PLAN"), OR (B) TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF A
PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN
ASSETS" OF A PLAN) PROVIDED THAT (I) SUCH A TRANSFER MAY BE MADE TO
AN INSURANCE COMPANY GENERAL ACCOUNT IF (i) THIS CERTIFICATE IS
ELIGIBLE FOR EXEMPTIVE RELIEF UNDER SECTION III OF PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND (ii) THE
CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO SUCH TRANSFER, AND (II) SUCH A TRANSFER MAY BE MADE WITH
RESPECT TO A CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M OR
CLASS N CERTIFICATE IF THE TRANSFEREE PROVIDES THE CERTIFICATE
REGISTRAR WITH A CERTIFICATION OF FACTS AND AN OPINION THAT ESTABLISH
TO THE REASONABLE SATISFACTION OF THE CERTIFICATE REGISTRAR THAT SUCH
TRANSFER WILL NOT RESULT IN A VIOLATION OF SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE OR RESULT IN THE IMPOSITION OF AN EXCISE TAX
UNDER SECTION 4975 OF THE CODE.]
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy
or accept a pledge, disposition or other transfer of any Certificate,
any interest in any Certificate or any other similar security from
any person in any manner, (c) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any
other similar security with any person in any manner, (d) made any
general solicitation by means of general advertising or in any other
manner, or (e) taken any other action, that (in the case of any of
the acts described in clauses (a) through (e) above) would constitute
a distribution of any Certificate under the Securities Act, would
render the disposition of any Certificate a violation of Section 5 of
the Securities Act or any state securities law or would require
registration or qualification of any Certificate pursuant thereto.
The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to any Certificate.
Very truly yours,
______________________________
(Transferee)
By:___________________________
Name:_________________________
Title:________________________
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
Yes No the 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
Yes No the Transferred Certificate only
for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of such third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of 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
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services (CMBS) - First Union National Bank-
Chase Manhattan Bank, Series 1999-C2
Re: First Union National Bank-Chase Manhattan Bank
Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ by (the "Transferor") to _______________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") having an
initial principal balance as of May 24, 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 May 1, 1999,
among First Union Commercial Mortgage Securities, Inc., as depositor (the
"Depositor"), First Union National Bank, as master servicer, Banc One Mortgage
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 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:
THE CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION
OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE
ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
- AND -
[NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN
OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR
INDIRECTLY PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.]
- OR -
[NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY
BE MADE (A) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT,
INCLUDING INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND
COLLECTIVE INVESTMENT FUNDS AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS,
ACCOUNTS OR ARRANGEMENTS ARE INVESTED, THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (ANY SUCH EMPLOYEE BENEFIT PLAN
OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR (B) TO ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF A PLAN
(INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING ASSETS IN ITS
GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A PLAN)
PROVIDED THAT (I) SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY GENERAL
ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER SECTION
III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND (ii)
THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH
RESPECT TO SUCH TRANSFER, AND (II) SUCH A TRANSFER MAY BE MADE WITH RESPECT TO
A CLASS H, CLASS J, CLASS K, CLASS L OR CLASS M CERTIFICATE IF THE TRANSFEREE
PROVIDES THE CERTIFICATE REGISTRAR WITH A CERTIFICATION OF FACTS AND AN
OPINION THAT ESTABLISH TO THE REASONABLE SATISFACTION OF THE CERTIFICATE
REGISTRAR THAT SUCH TRANSFER WILL NOT RESULT IN A VIOLATION OF SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE OR RESULT IN THE IMPOSITION OF AN EXCISE TAX
UNDER SECTION 4975 OF THE CODE.]
4. Neither the Transferee nor anyone acting on its behalf
has (a) offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar security to
any person in any manner, (b) solicited any offer to buy or accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner, (c)
otherwise approached or negotiated with respect to any Certificate, any
interest in any Certificate or any other similar security with any person in
any manner, (d) made any general solicitation by means of general advertising
or in any other manner, or (e) taken any other action, that (in the case of
any of the acts described in clauses (a) through (e) above) would constitute a
distribution of any Certificate under the Securities Act, would render the
disposition of any Certificate a violation of Section 5 of the Securities Act
or any state securities law or would require registration or qualification of
any Certificate pursuant thereto. The Transferee will not act, nor has it
authorized or will it authorize any person to act, in any manner set forth in
the foregoing sentence with respect to any Certificate.
5. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Certificates and distributions thereon,
(c) the Pooling and Servicing Agreement, and (d) all related matters, that it
has requested.
6. The Transferee is an "accredited investor" as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities 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:________________________
EXHIBIT H
FORM OF TRANSFEREE LETTER
[Date]
Norwest Bank Minnesota, National Association
Norwest Center
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services (CMBS) - First Union National Bank-
Chase Manhattan Bank, Series 1999-C2
Re: First Union National Bank-Chase Manhattan Bank
Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to _______________________ (the
"Transferee") of the Class ______________ Certificates (the "Transferred
Certificate") having an initial principal balance as of May 24, 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 May 1, 1999 (the "Pooling and Servicing
Agreement"), among First Union Commercial Mortgage Securities, Inc., as
depositor, First Union National Bank, as master servicer, Banc One Mortgage
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:
Either: (1) the Transferee is not an employee benefit plan
within the meaning of section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") (a "Plan"), or a plan within the meaning of
section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
"Code") (also, a "Plan"), and the Transferee is not directly or indirectly
purchasing the Transferred Certificate on behalf of, as investment manager of,
as named fiduciary of, as trustee of, or with assets of a Plan (including any
insurance company using assets in its general or separate account that may
constitute assets of a Plan); or (2) the Transferee's purchase of the
Transferred Certificate will not result in a prohibited transaction under
section 406 of ERISA or section 4975 of the Code or subject the Master
Servicer, the Special Servicer or the Trustee to any obligation in addition to
those undertaken in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has executed this
certificate as of the date first written above.
______________________________
(Name of Transferee)
By:___________________________
Name:_________________________
Title:________________________
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-C2, 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 May 1, 1999, among First Union Commercial Mortgage Securities,
Inc., as Depositor, First Union National Bank as Master Servicer,
Banc One Mortgage 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 be imposed but for the Transfer of an Ownership
Interest in a Class [R-I, R-II, R-III] Certificate to such Person.
The terms "United States", "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or
successor provisions.
A "Non-United States Person" is any Person other than a
United States Person. A "United States Person" is a citizen or
resident of the United States, a corporation, partnership or other
entity 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.
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 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 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".
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
___________, ____.
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
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Services (CMBS) - First Union National Bank-
Chase Manhattan Bank, Series 1999-C2
Re: First Union National Bank-Chase Manhattan Bank
Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2, 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 May 1, 1999, among First Union Commercial
Mortgage Securities, Inc., as depositor, First Union National Bank, as master
servicer, Banc One Mortgage Capital Markets, LLC, as special servicer, Norwest
Bank Minnesota and National Association, as trustee. All terms used herein and
not otherwise defined shall have the meanings set forth in the Pooling and
Servicing Agreement. The Transferor hereby represents and warrants to you, as
Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of
the Class [R-I, R-II, R-III] Certificates by the Transferor to the
Transferee is or will be to impede the assessment or collection of
any tax.
2. The Transferor understands that the Transferee has
delivered to you a Transfer Affidavit and Agreement in the form
attached to the Pooling and Servicing Agreement as Exhibit I-1. The
Transferor does not know or believe that any representation contained
therein is false.
3. The Transferor has at the time of this transfer conducted
a reasonable investigation of the financial condition of the
Transferee as contemplated by Treasury regulation section
1.860E-1(c)(4)(i) and, as a result of that investigation, the
Transferor has determined that the Transferee has historically paid
its debts as they became due and has found no significant evidence to
indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that the
transfer of the Class [R-I, R-II, R-III] Certificates may not be
respected for United States income tax purposes (and the Transferor
may continue to be liable for United States income taxes associated
therewith) unless the Transferor has conducted such an investigation.
Very truly yours,
By:______________________________
Name:____________________________
Title: ____________________________
EXHIBIT J-1
FORM OF NOTICE AND ACKNOWLEDGMENT
[Date]
Fitch IBCA, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the
Pooling and Servicing Agreement dated as of May 1, 1999 relating to First
Union National Bank-Chase Manhattan Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 1999-C2 (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.
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:
Xxxxx'x Investor Service, Inc. Fitch IBCA, Inc.
By:____________________________ By:_____________________________
Title:___________________________ Title:____________________________
Date:___________________________ Date:_____________________________
EXHIBIT J-2
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-Chase Manhattan Bank, Series 1999-C2
Ladies & Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement dated
as of May 1, 1999 relating to First Union National Bank-Chase Manhattan Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 1999-C2 (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: _________________________
EXHIBIT K
Uniform Commercial Code - FINANCING STATEMENT - Form UCC-1
TO BE FILED IN NORTH CAROLINA
EXHIBIT A
TO FINANCING STATEMENT
This Exhibit A is attached to financing statement and incorporated in
a financing statement pertaining to FIRST UNION COMMERCIAL MORTGAGE
SECURITIES, INC., as Depositor (referred to as the "Debtor" for the purpose of
this financing statement only), and Norwest Bank Minnesota, National
Association, as trustee for the holders of the Series 1999-C2 Certificates
(referred to as the "Secured Party" for purposes of this financing statement
only), under that certain Pooling and Servicing Agreement dated as of May 1,
1999 (the "Pooling and Servicing Agreement"), among the Debtor, First Union
National Bank, as master servicer (in such capacity, the "Master Servicer"),
Banc One Mortgage Capital Markets, LLC, as special servicer (in such capacity,
the "Special Servicer"), and the Secured Party, relating to the issuance of
the Debtor's Mortgage Pass-Through Certificates, Class X-0, Xxxxx X-0, Class
IO, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class R-I, Class R-II and Class R-III,
Series 1999-C2 (collectively, the "Series 1999-C2 Certificates"). Capitalized
terms used herein and not defined shall have the respective meanings given to
them in the Pooling and Servicing Agreement. The attached financial statement
covers all of the Debtor's right (including the power to convey title
thereto), title and interest in and to the Trust Fund created by the Pooling
and Servicing Agreement, consisting of the following:
1. The mortgage notes or other evidence of indebtedness of a
borrower (the "Mortgage Notes") with respect to the mortgage loans
(the "Mortgage Loans") listed on the Mortgage Loan Schedule to the
Pooling and Servicing Agreement, which Mortgage Loan Schedule is
attached hereto as Exhibit C;
2. The related mortgages, deeds of trust or other similar
instruments securing such Mortgage Notes (the "Mortgages");
3. With respect to each Mortgage Note and each Mortgage,
each other document in the related Mortgage File;
4. (a) the Certificate Account created by the Master
Servicer pursuant to the Pooling and Servicing Agreement, (b) all
funds from time to time on deposit in the Certificate Account, (c)
the investments of any such funds consisting of securities,
instruments or other obligations (including the Permitted Investments
described on Exhibit B hereto), and (d) the general intangibles
consisting of the contractual right to payment, including the right
to payments of principal and interest and the right to enforce the
related payment obligations, arising from or under any such
investments;
5. All REO Property;
6. (a) the REO Account required to be maintained by the
Special Servicer pursuant to the Pooling and Servicing Agreement, (b)
all funds from time to time on deposit in the REO Account, (c) the
investments of any such funds consisting of securities, instruments
or other obligations (including the Permitted Investments described
on Exhibit B hereto), and (d) the general intangibles consisting of
the contractual right to payment, including the right to payments of
principal and interest and the right to enforce the related payment
obligations, arising from or under any such investments;
7. (a) the Reserve Account(s) and the Servicing Accounts
maintained by the Master Servicer or Special Servicer pursuant to the
Pooling and Servicing Agreement, (b) all funds from time to time on
deposit in the Reserve Account(s) or the Servicing Accounts, (c) the
investments of any such funds consisting of securities, instruments
or other obligations (including the Permitted Investments described
on Exhibit B hereto), and (d) the general intangibles consisting of
the contractual right to payment, including the right to payments of
principal and interest and the right to enforce the related payment
obligations, arising from or under any such investments;
8. (a) the Distribution Account created by the Trustee
pursuant to the Pooling and Servicing Agreement, (b) all funds from
time to time on deposit in the Distribution Account, (c) the
investments of any such funds consisting of securities, instruments
or other obligations (including the Permitted Investments described
on Exhibit B hereto), and (d) the general intangibles consisting of
the contractual right to payment, including the right to payments of
principal and interest and the right to enforce the related payment
obligations, arising from or under any such investments;
9. All insurance policies, including the right to payments
thereunder, with respect to the Mortgage Loans required to be
maintained pursuant to the Pooling and Servicing Agreements,
transferred to the Trust Fund and to be serviced by the Master
Servicer or Special Servicer; and
10. All income, payments, products and proceeds of any of
the foregoing, together with any additions thereto or substitutions
therefor.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY THE
POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF THE INTEREST IN THE
MORTGAGE NOTES, THE RELATED MORTGAGES AND THE OTHER DOCUMENTS IN THE RELATED
MORTGAGE FILES EVIDENCED BY THE SERIES 1999-C2 CERTIFICATES, AND THIS FILING
SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT A SALE HAS NOT OCCURRED. THE
REFERENCES HEREIN TO MORTGAGE NOTES SHOULD NOT BE CONSTRUED AS A CONCLUSION
THAT ANY MORTGAGE NOTE IS NOT AN INSTRUMENT WITHIN THE MEANING OF THE UNIFORM
COMMERCIAL CODE OR THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR
SECURITY INTEREST OF THE SECURED PARTY IN ANY MORTGAGE NOTE, MORTGAGE OR OTHER
DOCUMENT IN A MORTGAGE FILE. IN ADDITION, THE REFERENCES HEREIN TO SECURITIES,
INSTRUMENTS AND OTHER OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, PERMITTED
INVESTMENTS) SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY SECURITY,
INSTRUMENT OR OTHER OBLIGATION (INCLUDING, WITHOUT LIMITATION, ANY PERMITTED
INVESTMENT) IS NOT AN INSTRUMENT, A CERTIFICATED SECURITY OR AN UNCERTIFICATED
SECURITY WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN
ANY APPLICABLE JURISDICTION, NOR SHOULD THIS FINANCIAL STATEMENT BE CONSTRUED
AS A CONCLUSION THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR
SECURITY INTEREST OF THE SECURED PARTY IN THE CONTRACTUAL RIGHT TO PAYMENT,
INCLUDING THE RIGHT TO PAYMENTS OF PRINCIPAL AND INTEREST AND THE RIGHT TO
ENFORCE THE RELATED PAYMENT OBLIGATIONS, ARISING FROM OR UNDER ANY SECURITY,
INSTRUMENT OR OTHER OBLIGATION (INCLUDING, WITHOUT LIMITATION, ANY PERMITTED
INVESTMENT). WITH RESPECT TO THE FOREGOING, THIS FILING IS MADE ONLY IN THE
EVENT OF CONTRARY ASSERTIONS BY THIRD PARTIES.
EXHIBIT B
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Trustee
if otherwise qualifying hereunder):
direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United
States or any agency or instrumentality thereof (having
original maturities of not more than 365 days), provided
such obligations are backed by the full faith and credit
of the United States. Such obligations must be limited to
those instruments that have a predetermined fixed dollar
amount of principal due at maturity that cannot vary or
change. If rated, such an obligation must not have an "r"
highlighter affixed to its rating by Standard & Poor's.
Interest may either by fixed or variable. If such interest
is variable, interest must be tied to a single interest
rate index plus a single fixed spread (if any), and move
proportionately with that index;
(ii) repurchase obligations with respect to any security
described in clause (i) above (having original maturities
of not more than 365 days), provided that the short-term
deposit or debt obligations, of the party agreeing to
repurchase such obligations are rated in the highest
rating categories of each of Moody's and Standard & Poor's
or such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to
the Certificates, as evidenced in writing by the Rating
Agencies. In addition, any such item must not have an "r"
highlighter affixed to its rating by Standard & Poor's,
and its terms must have a predetermined fixed dollar
amount of principal due at maturity that cannot very or
change. Interest may either be fixed or variable. If such
interest is variable, interest must be tied to a single
interest rate index plus a single fixed spread (if any),
and move proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits
and bankers' acceptances of any bank or trust company
organized under the laws of the United States or any state
thereof (having original maturities of not more than 365
days), the short term obligations of which are rated in
the highest rating categories of each of Moody's and
Standard & Poor's or such lower rating as will not result
in qualification, downgrading or withdrawal of the ratings
then assigned to the Certificates, as evidenced in writing
by the Rating Agencies. In addition, any such item must
not have an "r" highlighter affixed to its rating by
Standard & Poor's, and its terms should have a
predetermined fixed dollar amount of principal due at
maturity that cannot vary or change. Interest may either
be fixed or variable. If such interest is variable,
interest must be tied to a single interest rate index plus
a single fixed spread (if any), and move proportionately
with that index;
(iv) commercial paper (having original maturities of not more
than 365 days) of any corporation incorporated under the
laws of the United States or any state thereof (or if not
so incorporated, the commercial paper is United States
Dollar denominated and amounts payable thereunder are not
subject to any withholding imposed by any non-United
States jurisdiction) which is rated in the highest rating
category of each of Moody's and Standard & Poor's or such
lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to
the Certificates, as evidenced in writing by the Rating
Agencies. The commercial paper should not have an "r"
highlighter affixed to its rating by Standard & Poor's and
by its terms must have a predetermined fixed dollar amount
of principal due at maturity that cannot vary or change.
Interest may either by fixed or variable. If such interest
is variable, interest must be tied to a single interest
rate index plus a single fixed spread (if any), and move
proportionately with that index;
(v) units of money market funds rated in the highest rating
category of Moody's and AAAm or AAAm-G by Standard &
Poor's (or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings
then assigned to the Certificates, as evidenced in writing
by the Rating Agencies) and which seeks to maintain a
constant net asset value; and
(vi) any other obligation or security acceptable to each Rating
Agency, evidence of which acceptability shall be provided
in writing by each Rating Agency to the Master Servicer,
the Special Servicer and the Trustee;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; and (2) no investment described hereunder may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity.
EXHIBIT L
Form of Schedule of Certificateholders
Initial
Class Certificate Balance Name of Holder Address
EXHIBIT M
Form of CSSA Property File Report
EXHIBIT N
Form of
Comparative Financial Status Report
EXHIBIT O
Form of REO Status Report
EXHIBIT P
Form of Watch List
EXHIBIT Q
Form of Delinquent Loan Status Report
EXHIBIT R
Form of Historical Loan Modification Report
EXHIBIT S
Form of Historical Loss Estimate Report
EXHIBIT T
Form of NOI Adjustment Worksheet
EXHIBIT U
Form of Operating Statement Analysis
EXHIBIT V
Form of Loan Payoff Notification Report
EXHIBIT W
Form of CSSA Loan File Report
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 -
Chase Manhattan Bank, Series 1999-C2
Re: First Union National Bank-Chase Manhattan Bank
Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2
In accordance with Section 3.15 of the Pooling and Servicing
Agreement dated as of May 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, Banc One Mortgage
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-Chase Manhattan Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 1999-C2
(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
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:
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 -
Chase Manhattan Bank, Series 1999-C2
Re: First Union National Bank-Chase Manhattan Bank
Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates,
Series 1999-C2 (the "Certificates")
In accordance with Section 3.15 of the Pooling and Servicing
Agreement, dated as of May 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, Banc One Mortgage
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-Chase Manhattan Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 1999-C2
(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.
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:
